Liesa Wilson v Andrew Wilson

Supreme Court of NSW|2024-04-30|Before: Campbell J

Solicitors: Henry William Lawyers (Plaintiff) File Number(s): 2023/274900

ex tempore JUDGMENT (revised)

By statement of claim filed on 28 August 2023, the plaintiff, Liesa Wilson, seeks the recognition and enforcement of a foreign monetary judgment obtained by her on 9 March 2023 in the Fourth Judicial District Court of Utah County in the State of Utah, United States of America ("Utah Court").

Proceedings in the Utah Court

According to the evidence read in Ms Wilson's case, being the affidavit of Suzette Rasmussen of 28 August 2023, two affidavits of Ms Wilson, of 28 August 2023, and of 28 April 2024, and the affidavit of Mr Bonnell to which I have previously referred, I am satisfied of the matters which follow.
The proceedings in the Utah Court were family law proceedings following the breakdown of the marriage of Ms Wilson and Mr Wilson. They had married in 1992 and had separated in or around 2019. When she commenced the proceedings, as now, Ms Wilson resided in the State of Utah in the United States of America, and Mr Wilson by then was resident here in New South Wales. From evidence ultimately filed by him in the Utah Court, he had by then formed a new permanent domestic relationship.
Ms Wilson commenced the proceedings in the Utah Court seeking a decree of divorce from Mr Wilson and other relief in the nature of spousal support and a division of property. She was represented by Ms Rasmussen in those proceedings after she changed attorneys during the course of them.
I will return and deal with the circumstances of Mr Wilson's participation in the proceedings in more detail, but to complete the summary of the background to the proceedings, the Honourable Judge Kraig Powell decided the proceedings on 15 July 2022 after a hearing which took place on 31 May 2022. His Honour made various orders in favour of Ms Wilson under the various heads of claim. Those orders included the following: 1. USD $85,700 for arrears of spousal support. 2. USD $329,797.10 being one half of the proceeds of the sale of shares by Mr Wilson. 3. USD $145,894.48 for Ms Wilson's legal costs. His Honour allowed time to pay in respect of the second and third orders, but not the first.
Mr Wilson defaulted on payment of each of the various amounts ordered by Judge Powell, and on 9 March 2023 his Honour pronounced the following final orders on Ms Wilson's application: 1. The motion to enforce judgment in the amount of $561,391.58 is hereby granted. 2. Judgment is entered against Andrew Wilson in the amount of $561,391.58. 3. The respondent to pay the judgment to petitioner, Liesa Wilson, as of the date of this order.
The order was formally entered electronically in accordance with the Utah Court's rules by the stamping of electronic signature of the presiding judge on the first page. That signature appears in annexure "G" to Ms Rasmussen's affidavit (page 36, Court Book ("CB")), and I am satisfied that the order has been duly entered in accordance with the rules of court in Utah. I am also satisfied from the affidavits of Ms Wilson, to which I have referred, that Mr Wilson has not paid any part of the amount due under the judgment of the Utah Court.

Applicable principles

By reference to the very helpful submissions provided by Mr Bonnell and Mr Blaxell, the application for recognition and enforcement of the judgment of the Utah Court in this State proceeds according to common law principles; that is to say, that the judgment is not one to which the provisions of Part 2 of the Foreign Judgments Act 1991 (Cth) apply. However, s 11 of the Foreign Judgments Act, which appears in Part 3 of that Act, has some relevance to the issues which the Court needs to decide, to which I will return.
It is well-recognised that there are essentially four elements which the plaintiff needs to establish by evidence to invoke this Court's power to enter judgment in accordance or conformity with the foreign judgment. These principles have been set out in several cases, including Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435; [2020] NSWSC 588 (at [26] per Rothman J).
The principles are also fully discussed in M Davies et al, Nygh's Conflict of Laws in Australia (10th edition 2020, LexisNexis Butterworths; chapter 40 ("Nygh")). Those principles have frequently been referred to in decisions of judges of this Court, including Bao v Qu, Bank of China v Chen (No 2) [2022] NSWSC 1168 (at [26] per Wright J), and, more recently, Zhengzhou Lvdu Real Estate Group Co Ltd v Shu [2024] NSWSC 58 (at [20]-[23] per Nixon J).
The four elements are as follows: 1. The foreign court must have exercised jurisdiction of the requisite type over the defendant (also known as jurisdiction "in the international sense"). 2. The judgment must be final and conclusive. 3. There must be identity of parties between the foreign judgment debtors and the defendants in the enforcement action. 4. The judgment must be for a fixed liquidated sum.

First principle

Turning, then, to the application of those principles to the present circumstances, as I have already said, the Utah Court is not a designated jurisdiction of substantial reciprocity for the purposes of the Foreign Judgments Act. However, in considering the application of the first question, that is, whether the Utah Court exercised jurisdiction "in the international sense" over Mr Wilson, it is important to bear in mind the provisions of s 11 of the Foreign Judgments Act: "For the purposes of proceedings brought in Australia for the recovery of an amount payable under a judgment given in an action in personam by a court of a country, not being a judgment to which Part 2 applies, the court is not taken to have had jurisdiction to give the judgment merely because the judgment debtor: (a) entered an appearance in proceedings in the court; or (b) participated in proceedings in the court only to such extent as was necessary; for the purpose only of one or more of the following: (c) protecting, or obtaining the release of: (i) property seized or threatened with seizure, in the proceedings; or (ii) property subject to an order restraining its disposition or disposal; (d) contesting the jurisdiction of the court; (e) inviting the court in its discretion not to exercise its jurisdiction in the proceedings."
Having considered the evidence of Ms Rasmussen, I am of the view that none of the provisions of s 11 operate to displace the impression I have formed on the whole of the evidence that the Utah Court exercised jurisdiction over Mr Wilson "in the international sense".
Of s 11, it seems to me only paragraphs (a), (d) and (e) are possibly relevant to the circumstances of this case. So far as paragraph (a) is concerned, Mr Wilson's participation went well beyond merely entering an unconditional appearance in the proceedings. He was represented by local counsel and filed a defence by which he put in issue the merits of Ms Wilson's claim. Moreover, he invoked the jurisdiction of the Utah Court in the proceedings himself by applying by motion for entry of bifurcated Decree of Divorce. That is to say, he sought the separation of the question of whether a decree of dissolution of marriage should be made from the financial and property issues arising for the purpose of expediting the determination of that question, and he was successful in obtaining that order.
At the time he made the application for a bifurcated divorce, he stated for the application filed on his behalf the following (annexure "D", Rasmussen affidavit, CB page 22): "I respectfully request the Court grant me a divorce from petitioner on the grounds of irreconcilable differences and resolve all other issues in this matter at a later time". That concluding clause expresses a clear willingness to have the Utah Court exercise jurisdiction over him in respect all, including the other, grounds or forms of relief sought by Ms Wilson.
There is no suggestion in either the defence which contested the merits of Ms Wilson's claim, or any other documents filed on behalf of Mr Wilson in the proceedings, that he sought to contest in any way the jurisdiction of the Utah Court, either in the way described in paragraph 11(d), or on a discretionary basis such as forum non conveniens, as described in paragraph 11(e).
There is only one matter of possible concern on the evidence before me. On 20 May 2022, in advance of the hearing, Mr Wilson's local attorneys sought and were granted leave to withdraw from the proceedings.
When the matter was called on for hearing before the Utah Court on 31 May 2022, there was no appearance for Mr Wilson. The Court contacted him by telephone. According to Ms Rasmussen's affidavit - she was present as counsel - Mr Wilson "declined to participate in the hearing."
According to the judgment of his Honour Judge Powell (Rasmussen affidavit, annexure "F"; CB page 29) Mr Wilson made the comment, "the Court could do as it pleases" and hung up. On the face of it, that comment is not an expression of submission to the Court's jurisdiction but sounds more as defiance of it.
However, having given the matter consideration, I am not of the view that his conduct at that late stage, when the matter had been listed for hearing and he had, up until his attorney withdrew, participated in the proceedings, amounts to an action contesting the jurisdiction or seeking a discretionary refusal of jurisdiction. I have not mentioned so far what is apparent from Judge Powell's judgment that Mr Wilson, himself, was pursuing a counter claim which his Honour dismissed. It seems to me that his withdrawal from the proceedings and his abandonment of his counter claim, by what I have described as his defiance, does not constitute, as I have said, a challenge to jurisdiction; nor does it deprive the proceedings, including the judgment of Judge Powell, of its quality as a trial on the merits.
As Kirby P (as his Honour then was) said in Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 (at 520F): "If, as it is contended, the respondent did not have a trial 'on the merits' this was solely by virtue of its own conduct. It instructed its counsel to withdraw. Once the adjournment was refused, no endeavour was made (for example by subpoena of witnesses, the evidence of experts or otherwise) to prove the respondent's case. It was simply abandoned. The respondent walked away from it. There was not even an application to sever the counter claim and to have leave of the Court to discontinue that claim. Such a course might have been taken under the… practice [of the County Court of Victoria]."
It seems to me that Mr Wilson's belated acts of defiance at the hearing falls into the same category, and I repeat, does not represent a challenge to the jurisdiction of the Utah Court; nor does it deprive the proceedings before the Utah Court of their character as a trial of the issues between the parties on the merits.
For those reasons I am satisfied that the requirement of the exercise of jurisdiction over the defendant "in the international sense" is satisfied.

Second principle

I turn, then, to the second principle, which I can deal with more briefly, being that of the finality of the foreign judgment. There is no doubt in my mind that the judgment of 9 March 2023 relied upon by Ms Wilson is a final judgment in the sense of a judgment on the merits that finally quelled the controversy in relation to the financial and property matters arising from the breakdown of the marriage. There is no doubt that the order has been regularly entered in accordance with the local rules of the Utah Court.
The original orders of 15 July 2022 and Judge Powell's reasons made clear, "[t]he Court had sufficient evidence to enter findings of facts and conclusions of law and has done so". I am satisfied, I repeat, that the judgment of the Utah court comprehensively disposed of the controversies in accordance with what was said by Forrest J in Doe v Howard [2015] VSC 75 at [67].
I should say in passing that his Honour Judge Powell's decision is subject to a statutory right of appeal. However, it is quite clear from the discussion in Nygh (at [40.32]) that the availability of a right of appeal does not deprive the first instance judgment of its status as a final judgment of the Utah Court. From the evidence of Ms Rasmussen, the time for lodging an appeal from Judge Powell's judgment, whether from the orders of 15 July 2022 or from the final judgment pronounced on 9 March 2023, has expired and no appeal has been taken by Mr Wilson (Rasmussen affidavit paragraphs [13] to [15]).
I am satisfied the second element has been made out.

Third principle

The third element is that the defendant in these proceedings is identity of the defendant in each proceedings. There is no question about that matter. Mr Wilson was the respondent in the Utah proceedings, and he is the defendant here; he is the judgment debtor under the judgment of the Utah Court, and he is the defendant in these enforcement proceedings. The third element is satisfied.

Fourth principle

There is also no question in my mind about the fourth element. Although Ms Wilson advanced a number of separate claims for arrears of spousal support, for division of property and for costs, she made no claim for ongoing or continuing spousal support and all of her entitlements have been quantified and crystallised in the judgment of the Utah Court pronounced on 9 March 2023. The learned authors of Nygh state (at [40.46]): "...the plaintiff can rely on the foreign judgment as imposing an obligation on the defendant to pay the sum adjudged. Since this is a sum certain, the plaintiff can sue for the amount as a liquidated amount like any other simple contract debt." (Footnote omitted.)
This statement of principle is applicable here and the fourth element is satisfied.

Mr Wilson's defence

Before turning to Ms Wilson's claim for interest I return to the question of Mr Wilson's defence. A claim for recognition and enforcement of a foreign judgment which otherwise seems good can be defeated by certain vitiating factors including fraud, contravention of public policy, the judgment amounts is punitive, the defendant was denied natural justice or estoppel in its various forms. This list is not exhaustive of the matters that may defeat an apparently otherwise valid claim.
Suffice it to say that none of these matters are raised in Mr Wilson's defence; nor is there any evidence before me that suggests that any of them might have been available to Mr Wilson had he chosen to appear. Rather, the matters raised by him in his five paragraphs seem to impugn the jurisdiction of this Court. If I may say so, the matters which he raises have about them the character of pseudo-law which is sometimes relied on by self-represented litigants to give a false appearance of serious contention, which the most cursory of examinations show to be obviously fallacious.
The question of jurisdiction that he raises is that he asserts that these proceedings are bankruptcy proceedings and that this Court is not a court of bankruptcy for the purpose of the Bankruptcy Act 1966 (Cth). While it may be true to say that the Supreme Court is not a court of bankruptcy, nor are these proceedings bankruptcy proceedings. These are not proceedings that in any way arise, or purport to arise, under the Bankruptcy Act.
The matters he raises about the applicability of Australian bankruptcy laws, the distinction between family law and bankruptcy law, and his assertion of the inadmissibility of a foreign family law ruling in bankruptcy proceedings are all completely misguided. As those are the only matters forming the basis for his application for the dismissal of the proceedings, they cannot operate to defeat Ms Wilson's claim. These are proceedings to recognise and enforce a foreign judgment under common law. That there may be consequences which engage the Bankruptcy Act if this Court enters judgment in favour of Ms Wilson, that is neither here nor there for the purpose of the exercise of this Court's jurisdiction.

Interest

Ms Wilson claims interest under s 100 of the Civil Procedure Act 2005 (NSW) from the date of the Utah judgment, that is 9 March 2023, to today. As Rothman J pointed out in Bao v Qu (No 2) at [54]-[57], where a foreign judgment is enforced at common law, the interest rate applicable is the rate determined by the foreign court. Ms Rasmussen deposes that pursuant to section 15-1-4 of the Utah Code, all civil judgments bear interest "at the federal post-judgment interest rate as at 1 January plus 2%". The only evidence I have is the applicable rate as at 1 January 2023, which Ms Rasmussen states was 4.72%. Adding the 2% to which she refers, the interest rate applicable is 6.72% per annum.
Mr Bonnell has handed up an interest calculation (MFI 1) setting out his claim on behalf of Ms Wilson until today. From those calculations, I am satisfied his arithmetic is correct and I will allow interest in accordance with his calculation. For completeness, I accept the calculation that 6.72% produces a figure, if one uses his formula set out in MFI 1, calculating the days from judgment as 416, interest is: USD $561,391.58 x 6.72% x 416/365 = USD $42,996.75. I will add that to the amount of the judgment of the Utah Court.
I make the following orders: 1. Judgment in favour of the plaintiff as against the defendant in the sum of USD $604,388.33. 2. The defendant is to pay the plaintiff's costs of the proceedings.

Amendments 02 May 2024 - Front Page - Cases Cited: Correction to citation Linprint v Hexham Textiles (1991) 23 NSWLR 58 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2024

(2020) 102 NSWLR 435

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