First Property Holdings Pty Ltd v Nyunt [2017] NSWSC 217

Supreme Court New South Wales

Medium Neutral Citation: First Property Holdings Pty Ltd v Nyunt [2017] NSWSC 217 Hearing dates: 7 March 2017 Date of orders: 07 March 2017 Decision date: 07 March 2017 Jurisdiction: Common Law Before: Campbell J Decision: I direct counsel to bring in short minutes of order to give effect to these reasons Catchwords: CIVIL PROCEDURE – registration of foreign judgment under the Foreign Judgments Act 1991 (Cth) – application to set aside registration of a foreign judgment – freezing order under the Uniform Civil Procedure Rules 2005 (NSW) – whether freezing orders ought to be continued – challenge to the making of freezing orders Legislation Cited: Foreign Judgments Act 1991 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: First Property Holdings Pty Ltd (Plaintiff)

Michael Nyunt (also known as U Myo Nyunt) (Defendant) Representation: Counsel: C. Colquhoun (Plaintiff) B. DeBuse (Defendant)

Solicitors: Holman Fenwick Willan (Plaintiff) McCooe Raves & Poole Solicitors (Defendant) File Number(s): 2017/65638

ex tempore judgment - revised 1. As contemplated by the Foreign Judgments Act 1991 (Cth), the Honourable Justice Natalie Adams made orders for the registration of judgments made against the Defendant by the High Court of the Republic of Singapore. Her Honour also made so-called "freezing orders" under rule 25.14 of the Uniform Civil Procedure Rules 2005 (NSW) affecting the property of the Defendant and his wife who was the Second Respondent to a motion seeking that relief. Her Honour conventionally listed the matter today for a consideration of the continuation of those freezing orders. 2. Mr DeBuse of counsel appears on behalf of Mr and Ms Nyunt today. He informs me that his instructing solicitor was instructed on Friday and that he has only come into the matter either late yesterday or this morning. He has informed me that he is instructed that the Defendant will take steps under the Commonwealth legislation to have the order for registration set aside and that Ms Nyunt wishes to contest or challenge the freezing order so far as it applies to her assets. 3. Frequently, of course, that matter would be dealt with on the first "return" of the order following service, but due to the shortness of time and the lateness with which counsel and his instructing solicitor have been engaged, there has been insufficient time to prepare the necessary evidence to, as it were, "put the Plaintiff to proof" to demonstrate why the freezing order should be continued. 4. The basis upon which her Honour made the order against Ms Nyunt is found in rule 25.14 (5) which her Honour set out in full at [34] of her judgment. And the facts material to her Honour's decision in this regard are set out at paragraphs [40] to [44]. They are essentially objective facts which are not disputed giving, on one view, a flavour of events suggestive of the contention that the Defendant had sought to divest himself of at least some of his assets in order to defeat the foreign judgment. That proposition is hotly contested by Mr DeBuse and, as I have said, he seeks the opportunity to put on evidence about the circumstances of divestment. 5. The parties agree that the matter should go over and have largely agreed upon the various orders that ought to be made. The disagreement between them relates to three topics in particular. The first is the extent to which the Defendant should be required to put on all of the evidence upon which he relies to set aside the orders of registration of the foreign judgment forthwith; the second relates to the urgency with which the question of whether the freezing order should continue against Ms Nyunt can be considered; and the third relates to whether, in the meantime, Ms Nyunt ought to be required to comply with her obligations imposed under order 8 of the freezing order made on 2 March 2017. 6. Insofar as the first topic of dispute is concerned, I accept what Mr DeBuse says about the difficulty of obtaining some of the evidence upon which reliance will be placed to set aside the registration order. Some of that evidence, I accept, needs to be sourced in Myanmar - the Defendant is a national of that country - and it may be that the timetable proposed by the Plaintiff is too tight for that to be done, even if that material is obtained promptly and efficiently. There is not a lot of dispute. Working on MFI 1, which is the form of orders proposed by the Plaintiff, my own view is that the Defendant should be required to file and serve a notice of motion seeking to set aside orders 1 and 2 made on 2 March 2017 by 17 March 2017. In the motion the Defendant should identify the particular grounds under s 7 of the Commonwealth legislation relied upon, providing short particulars of each ground. An affidavit in support should be filed setting out, as fulsomely as circumstances will allow, the evidence to be relied upon. The affidavit should also indicate what further evidence is contemplated. The Defendant should be given an opportunity to compile that evidence, particularly, as I have said, evidence which is sourced overseas. 7. Order 2 should be made continuing the freezing and ancillary orders until 20 March 2017, subject to what I will say about the third issue in a moment. And the summons, so far as it relates to the registration of the judgment, should be stood over for further directions before the Duty Judge on 20 March 2017, as the parties agree. 8. Turning to the second issue, that is to say the urgency with which the matter can be brought back before the Court, Mr DeBuse gave an estimate of half a day for the argument, which may have been a cautious estimate, given that the evidence has not yet been marshalled. I am uncertain about the Court's ability to fix an urgent hearing of that length now. That matter would best be determined by the Registrar who is likely to be in a much better position than me to know whether and when a hearing of that potential can be allocated. Moreover, given time to prepare the relevant evidence and to refine the argument, it may be that a more accurate and shorter estimate can be given and it may be possible for the matter to be referred to the Duty Judge next week. I think they are all questions better determined by the Registrar than me. 9. However, I think a direction should be made standing over the notice of motion in relation to the freezing order filed on 2 March 2017 for directions before the Registrar; Mrs Nyunt should file and serve any affidavit to be relied upon in relation to the question of whether the order should extend to her by 4pm on 10 March 2017; a short statement of the principal contentions of law relied on should also be served upon the Plaintiff at that time. 10. I turn then to the third issue about whether Mrs Nyunt should be required to comply with order 8 in the meantime. I accept the force of the arguments put by Mr Colquhoun of counsel on behalf of the Plaintiff that ancillary orders requiring the disclosure of assets are important to protect the legitimate interest of the Plaintiff who has persuaded the Judge that a freezing order ought to be made. Typically, the Plaintiff is not in a good position to know the full extent of the assets which may be available to secure satisfaction of the judgment, in this case, already obtained overseas. That is a powerful argument. On the other hand, the only evidence in relation to the matter relates to the creation of a joint tenancy in two residential properties at Artarmon which were formerly held in the name of the Defendant alone. Although, as I have said, viewed objectively, the facts may have something of the flavour about them of an attempt to defeat the enforcement of the judgment on the part of the Defendant, that flavour is hardly very strong, given the limited evidence about a limited disposition of his property to his wife. Moreover, where the order is to be contested by Ms Nyunt effectively ab initio, there is much to be said for the argument that she ought not be required until that question is determined to effectively give discovery of her financial position. 11. The interests are reasonably balanced. I acknowledge the force of the undertaking provided by the Plaintiff not to use the information disclosed other than for the purposes of the proceedings. Those undertakings are contained in schedule A to the order. However, those undertakings, it seems to me, do not necessarily answer the proposition put by Mr DeBuse about whether the order should catch the assets of Ms Nyunt. I am of the view that she should not be obliged to comply with order 8 until the question of whether the freezing order should be continued against her is determined. 12. Finally, I note that the parties are agreed that order 2 made by her Honour on 2 March in relation to costs should be set aside, and, instead, an order in the form appearing at paragraph 2 of the form of order for registration of judgment propounded by the Plaintiff on 2 March 2017 ought to be made. 13. I direct counsel to bring in short minutes of order to give effect to these reasons.