Lewis v Lamb [2004] NSWSC 322 | Case summary

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."

It has been submitted on behalf of Lewis that "the Lamb Judgment" in the above clauses refers only to the New Zealand judgment; that the effect of clause 19 is to permit or contemplate a stay of execution only in the High Court of New Zealand; and that to entertain such an application in this Court, albeit the judgment is registered here, would be contrary to the agreement of the parties. 5 It seems to me that the agreement of the parties could not affect the jurisdiction of this Court to hear an application for stay, particularly in light of the clear provisions of s 6(7) of the FJA, although, if the application were in contravention of the parties' agreement, it may be that that would be a factor to be taken into account by this Court in exercising its jurisdiction. However, I do not accede to the submission as to the meaning of the relevant clauses of the agreement. Those very clauses contemplate the registration of the judgment in Australia and seek to regulate the conduct of the parties in relation to the judgment, if registered (eg, the agreement of Lamb not to seek "to set aside, and/or reopen the Lamb Judgment in ... Australia"). On a proper reading of clauses 14 to 19, in my view the stay of the enforcement of the Lamb judgment referred to in clause 19 and cross referred to in earlier clauses is contemplated by the agreement as likely to be made wherever the judgment may be registered as well as in New Zealand. 6 If the matter could be dealt with only under Part 42 r 12 of the SCR, I should still be of the view that there are matters which have occurred since the entry of the judgment (whether the appropriate judgment be the New Zealand judgment or the judgment registered in Australia) that could, taken with the other circumstances of the matter, justify a stay of proceedings. That matter is the fact that the Australian proceedings referred to in the deed of settlement were not completed by 31 March 2004 and have not been completed to this date. However, I need not tarry long over this matter, as power is also available under Part 44 r 5 and the inherent jurisdiction, which contain no such limitation. 7 It is clear that such powers to stay judgment are of wide ambit and the categories of matter by reference to which they are to be exercised are not to be regarded as closed. Such discretions are not, of course, unfettered. They must be exercised judicially and by reference to considerations relevant to their exercise. In the end they must be exercised in accordance with and so as to carry out what the court perceives as the dictates of justice: see generally the decisions of the Full Court of the Federal Court in Philip Morris (Aust) Ltd v Nixon [1999] FCA 1281 at [17]; Australian Workers' Union v Pilkington (Aust) Ltd (2000) 101 FCR 35 at [9] - [11]. 8 These discretions are often exercised when there is an appeal from the judgment involved. In relation to a case where no appeal is involved it is true, as Mr Cotman, of Senior Counsel for Lewis, has said, that the powers are often exercised in relation to the existence of cross claims or set offs. He has conceded that they are exercised at times where the judgment debtor has a claim for indemnity which would make available funds with which the judgment against him or her could be satisfied: see Ritchie's Supreme Court Practice ibid. He does not submit that the circumstances in which the power may be used are wholly limited to those circumstances, but he does refer in his submissions to the lack of nexus between people or proceedings, persons or actions in contemplation here. The statement of claim in the New Zealand proceedings is in evidence, as are the current pleadings in the Australian proceedings which I am hearing. It is quite correct that there is not a great deal, if any, overlap between the two sets of proceedings. However, it is equally clear that both sets of proceedings, insofar as they involve Lewis, Lamb and their associates, are aspects of one war between Lewis and Lamb arising out of the one event of their parting company in a previously successful business operation which was, in various manifestations, carried on both in Australia and in New Zealand. Whilst the Australian proceedings, at least as a result of the trial before me, will not result in a judgment in favour of Lamb personally, they may well result in a judgment in favour of Lamru, through which funds from Kation and from Lewis personally would become available to Lamb to meet the New Zealand judgment against Lamb. It is submitted by Lamb that that is sufficiently relevant to justify the exercise of jurisdiction to stay if the Court deems fit. Such an approach is certainly not wholly dissimilar from the approach taken by Malcolm CJ in the Supreme Court of Western Australia in The State Bank of Victoria v Parry [1989] WAR 240. It should be noted that the discretion which his Honour was there exercising, at least under one of the sources of power available to him, was more narrowly constrained than the discretions which I am exercising, in that a finding of "special circumstances" was necessary for that discretion to be exercised. His Honour found that the potential availability of funds through an indemnity constituted "special circumstances" in that case. 9 However, the considerations in this case go beyond the fact that, whilst there is not a correspondence of parties in the proceedings, success in the proceedings in the Equity Division may, as a realistic matter, make available to Lamb from the Lewis side funds with which to meet the New Zealand judgment. It seems to me quite clear from the terms of the settlement deed that one of the matters contemplated by the parties to it in reaching agreement in the terms they did was an anticipation that the proceedings in the Equity Division would be concluded before the New Zealand judgment fell to be enforced. They allowed a period of stay of more than seven months after the agreement and specifically contemplated (while all other applications in relation to the New Zealand judgment were precluded) an application for stay of execution if the proceedings before me had not reached conclusion by 31 March 2004. These appear to me all to be matters relevant to the exercise of the discretion to stay judgment in this case. The conclusion that I have come to is that the dictates of justice will be best met if I stay the execution of the registered judgment at least until the judgment which I am about to reserve in the proceedings in the Equity Division is delivered. Whether any further stay is justified beyond that time will need to be viewed in the light of the terms of that judgment. The orders of the Court will be:

Lewis v Lamb

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