WFM MOTORS PTY LTD. v. MALCOLM MAYDWELL

IN THE COURT OF APPEAL

1995, No. 148
(Civil)

----------------------

--------------------

D E C I S I O N

--------------------

Ching, J.A. (giving the judgment of the Court) :

1. On 7th December, 1995, we handed down a reserved judgment by which we reversed the decision of the Judge below and restored the registration in Hong Kong of a judgment obtained by the Plaintiff against the Defendant in Australia. The Defendant applied for leave to appeal to the Privy Council. On 16th February, 1996, we gave conditional leave and said that we would give our reasons in writing. These are our reasons.

2. In his application the Defendant put forward all the grounds available to him in law, namely that the decision was a final one indirectly involving a matter in dispute of the value of $500,000 or upwards under Rule 2(a) of the Order in Council regulating appeals to Her Majesty in Council, alternatively that there were questions of great general or public importance under Rule 2(b), or under the words "or otherwise" in Rule 2(b). In the event we heard argument on only the first of these. The Plaintiff conceded that the monetary requirement was satisfied. In the circumstances we were concerned only with the question of whether or not our judgment was a final one under Rule 2(a).

3. Having regard to the decision of this Court in First Pacific Bank, Ltd., v. Robert H.P. Fung (1990) 1 HKLR 527 the test for finality in Hong Kong is that which has been described as the application test, that is to say whether the controversy in issue between the parties would be finally resolved whichever way the decision should go. In the present case the controversy and the only controversy was whether or not the Plaintiffs should be entitled to register their Australian judgment in Hong Kong. Judgment had gone against the Defendant in Australia and he had exhausted his appeals there. His opposition to the registration here could not be based upon any allegation that the Australian courts had been mistaken or that he was in fact not liable to the Plaintiff. The Court does not sit on appeal from the Australian courts. His opposition was based mainly on the allegation that the judgment had been obtained by fraud. We held that that had not been shown and that no sufficient ground was shown to order that any issue should be tried. In our view the judgment was final. Whichever way the decision had gone no further proceedings could have taken place on the question of registrability.

4. Mr. Geoffrey Ma, Q.C., for the Plaintiff argued that all questions of execution are interlocutory. We agree. He also argued that the registration of the judgment was merely a step in execution. We do not agree. Undoubtedly, registration of the judgment in Hong Kong was a pre-requisite of execution in Hong Kong but it was not itself a step in execution. Once registered in Hong Kong the Australian judgment, like a Hong Kong judgment, became one that could be executed in Hong Kong. Any questions arising in the course of execution would be no different from the same or similar questions arising in the course of executing a Hong Kong judgment but that was not a matter with which the Court was dealing.

5. Mr. Ma also argued that absent registrability the Plaintiff was entitled to proceed in a fresh action by reason of section 5 of the Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance, Cap.46. This emphasised that one must look to the underlying dispute between the parties and showed that the judgment had not resolved that dispute, namely the claim of the Plaintiff that the Defendant was indebted to it. Again, we do not agree. Those proceedings, if instituted, would have been separate proceedings dealing with liability with which the Court was not concerned. The Court was concerned only with recognition of the Australian judgment by way of registration.

6. We therefore gave leave to appeal subject to the following:-

(1) The Defendant to provide security for the costs of the appeal in the sum of $100,000 within 3 months.

(2) The record to be prepared and lodged with the Registrar for transmission to the Registrar of the Privy Council within 3 months.

We ordered the costs of this application to be costs in the appeal to the Privy Council and we ordered a stay of execution of the registered judgment until 29th February, 1996, when the parties will be appearing before us again on a related matter. This was to allow the Defendant an opportunity to place before us a factual basis upon which we could consider a stay pending the decision of the Privy Council. For the sake of clarity we gave him liberty to apply for a further stay on that date.

7. We must express our gratitude to Mr. Ma for offering to assist the Defendant, who has represented himself now for some time, in the preparation of the record.