Plaintiff v Defendant

(a) Judgment in Default entered on 8 December 2017 of Registrar Myonnie Samani of the High Court of Solomon Islands, in Civil Claim Number 520 of 2017; and

(b) Judgment in Default entered on 21 February 2018 by the Honourable Justice Kouhota of the High Court of Solomon Islands, in Civil Claim Number 519 of 2017;

1. The Solomon Islands Judgments are based on various commercial loans and guarantees discussed in greater detail below.
2. By summons filed 16 October 2024, the defendant seeks orders to set aside the plaintiff's application for the registration of the Solomon Islands Judgments.
3. The plaintiff relies upon the following documents:

(a) affidavits of Wilson Rano ('Mr Rano') sworn on 29 November 2023, 30 April 2024 and 16 July 2024; and

(b) submissions filed on 22 November 2024 and further submissions emailed to the Court on 20 December 2024.

1. The defendant relies upon the following documents:

(a) affidavit of Kutila Pinto ('the defendant') filed on 16 October 2024; and

(b) submissions filed on 15 November 2024 and 18 December 2024.

1. On 5 May 2015, Pan Oceanic Bank Limited ('the plaintiff') and the company Best & Less Limited ('B&L'), entered into a credit facility agreement for the amount of SBD $1,000,000 with an interest rate of 10% per annum ('$1m Facility'). This loan was to be secured by a charge over a parcel of land as well as a Corporate Guarantee Agreement executed by the plaintiff and the guarantor, Australasian Consultancy Excellence Limited ('ACE'). The latter was entered into on 5 May 2015.
2. On 26 August 2016, the plaintiff and B&L entered into a further loan facility in the amount of SBD $5,000,000 at 8% interest per annum, with this facility to incorporate a continuation of the $1m Facility ('$5m Facility').
3. At all material times, the defendant was the sole director of both ACE and B&L, and ACE was the sole shareholder of B&L. The defendant also says he was 'the founder of' the plaintiff and was an executive director from May 2015 until 19 December 2016, when he says he was 'unlawfully removed.'
4. On 8 December 2016, the defendant executed a personal guarantee in relation to the loan facilities.
5. The plaintiff advanced funds to B&L on:

(a) 6 February 2017 in the amount of SBD $1,000,000 under the $1m Facility; and

(b) 18 May 2017 in the amount of SBD $903,707 under the $5m Facility.

1. On 1 November 2017, the plaintiff commenced proceedings in the High Court of the Solomon Islands:

(a) in Civil Case no. 520 of 2017 against B&L to recover SBD $1,903,707 with 8% interest outstanding pursuant to the $5m Facility ('$5m Facility Claim'); and

(b) in Civil Case no. 519 of 2017 against B&L to recover the outstanding sum of SBD $661,634.56 with 10% interest pursuant to the $1m Facility ('$1m Facility Claim').

1. As discussed further below, the defendant was not personally served with these proceedings and did not know of them prior to judgment being entered.
2. On 8 December 2017, Registrar Myonnie Samani of the High Court of the Solomon Islands entered judgment in default in the $5m Facility Claim, ordering B&L to pay the amount claimed and that in default of payment, the defendant and ACE were jointly and severally liable for the judgment sum of SBD $1,903,707 pursuant to the guarantee ('$5m Facility Judgment'). The judgment is in the following terms:

UPON READING the Claim-Category B filed on 1 November 2017, Sworn Statement of Mr Papage filed on 6 December 2017, Application for Judgment and Sworn Statement of Mr Fernando filed on 7 December 2017

IT IS HEREBY ORDERED as follows:

(1) A Default Judgment against the Defendants (sic)[1] pursuant to r 9.17(b) of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Court Rules");

(2) In lieu of the default judgment:

(a) an order for the sum of SBD $1,903,707.00 at the agreed interest rate of 8%; and/or

(b) where Defendant fails, [the defendant] and [ACE] jointly or severally pursuant to guarantee agreement pay the judgment sum..

(3) Costs of the Claim and this application in the sum of $5,585.00.

1. On 21 February 2018, Kouhota J of the High Court of Solomon Islands entered judgment in default in the $1m Facility Claim against B&L in the sum of SBD $661,634.56, and ordering the plaintiff to exercise its power of sale over the secured property ('$1m Facility Judgment'). The judgment is in the following terms:

UPON HEARING Mr Rano of Counsel for the Claimant

IT IS HEREBY ORDERED as follows:

(1) Judgment in default against the Defendants (sic)[2] pursuant to r 9.17(b) of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Court Rules") is granted;

(2) In lieu of the default judgment:

(a) there be an order for the sum of SBD$661,634.56 at the agreed interest rate of 10%; and;

(b) the Claimant to exercise its power of the sale of Fixed Term Estate in Parcel Number 191-013-176 pursuant to the charge registered on the 24th of July 2015.

(3) Costs of the Claim and this application in the sum of $5,585.00.

1. The $1m Facility Judgment is not made against, and therefore imposes no liability directly upon, the defendant. The judgment otherwise permits sale of the security property, which is a property in the Solomon Islands.
2. On 23 August 2018, the plaintiff applied for leave to enforce personal and corporate guarantees against the defendant, and ACE. On 29 August 2019, Keniapisia J of the High Court of Solomon Islands granted leave to the plaintiff to enforce against the defendant and ACE in the sum of SBD $1,659,447.27.

IT IS HEREBY ORDERD as follows:

1. Leave is granted to [the plaintiff] to enforce against [the defendant] pursuant to the Personal Guarantee dated 12 April 2016 and [ACE] pursuant to Corporate Guarantee Agreement dated 5 May 2015, the sum of $1,659,447.27 including accrued interests jointly and severally.
2. Costs of the application including enforcement shall be paid by Mr [the defendant] and [ACE] jointly and severally to be taxed if not agreed.

1. The plaintiff has not sought to register this judgment.
2. On 1 February 2020, ACE was deregistered.
3. On 18 June 2020, the plaintiff commenced a proceeding in the High Court of Solomon Islands in Civil Case 266 of 2020 to recover judgment debts in the $1m Facility Judgment and $5m Facility Judgment against the defendant in the sum of SBD $1,617,099.81 ('Bankruptcy Proceeding'). This proceeding was commenced by service of a bankruptcy notice based on the judgment debts.
4. On 26 October 2020, the defendant filed an application to set aside the bankruptcy notice. On 20 April 2021, the defendant was represented by counsel at the hearing of the application to set aside the bankruptcy notice. At this hearing, Kouhota J dismissed the defendant's strike out application with costs and extended the bankruptcy notice to 4 May 2021.
5. On 8 March 2023, Kouhota J made declarations as to the defendant's liability under the judgments and declared the defendant bankrupt in the following terms:

IT IS HEREBY ORDERD as follows:

1. A declaration that [the defendant] owes [the plaintiff] the sum of SBD $1,617,099.81 including interest and interest is accruing since the judgment was issued by the Court on 21 February 2018 under Civil Cases Number 519 of 2017 and 520 of 217.
2. A declaration that [the defendant] has shown a lack of financial capacity to settle the Judgment Debt in full.
3. A declaration that [the defendant] is hereby adjudged a bankrupt until he is being discharged or the bankruptcy has been annulled.
4. The costs of the proceeding shall be borne by [the defendant] to be assessed if not agreed.

1. On 8 December 2023, the plaintiff commenced this proceeding seeking to register the Solomon Islands Judgments.

1. The plaintiff seeks to register the Solomon Islands Judgments pursuant to the FJ Act and the Foreign Judgment Regulations 1992 (Cth).
2. It is not disputed that the Court has jurisdiction to register the Solomon Islands Judgments, and I am satisfied that it does.[3]
3. The type of judgment that may be registered includes, 'a final or interlocutory judgment or order made by a court in civil proceedings.'[4] I am satisfied the Solomon Islands Judgments meet that definition.
4. Section 6 of the FJ Act provides that the criteria that must be met before a judgment may be registered relevantly are:

(a) the judgment is for payment of a sum of money;

(b) the judgment is final and conclusive;

(c) the judgment is enforceable in the foreign court in which it was made; and

(d) the judgment has not yet been discharged or wholly satisfied.

1. The onus of establishing these four pre-conditions rests on the party seeking to enforce the judgment and once they are established, the judgments are prima facie enforceable.[5] It was not suggested that any of these criteria were not met, and I am satisfied that these four criteria are met because:

(a) it is apparent on the face of the judgments that they are for payment of a sum of money;

(b) on their face they are final and conclusive. The bankruptcy proceeding was initiated based on the judgments, which the defendant unsuccessfully opposed;

(c) on their face, the judgments are enforceable in the Solomon Islands. There is no evidence that any challenge has been made to the Solomon Islands Judgments such that enforcement could be resisted; and

(d) Mr Rano's evidence is that the Solomon Islands Judgments have not been discharged or wholly satisfied and the defendant does not say they have been.

1. The criteria upon which registration of the judgment can be refused or set aside are listed in s 7(2)(a) of the FJ Act, as follows:

(2) Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:

(a) must set the registration of that judgment aside if it is satisfied:

(i) that the judgment is not, or has ceased to be, a judgment to which this Part applies; or

(ii) that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or

(iii) that the judgment was registered in contravention of this Act; or

(iv) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(v) that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or

(vi) that the judgment was obtained by fraud; or

(vii) that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or

(viii) that the rights under the judgment are not vested in the person by whom the application for registration was made; or

(ix) that the judgment has been discharged; or

(x) that the judgment has been wholly satisfied; or

(xi) that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy.

1. Section 7(2)(a) specifically applies to applications to set aside the registration of a judgment, and are not expressed as grounds upon which registration can be refused.[6] However, in a situation such as this, where the defendant is on notice of the application to register the judgment and is resisting registration, I will proceed on the basis that the considerations in s 7(2)(a)[7] are equally applicable to determining the defendant's current application. The defendant bears the burden of establishing grounds under s 7(2)(a).[8]
2. The defendant's submissions are wide ranging and are described by him as including:

Judicial impropriety and defective pleadings in the original proceedings.

Defamation, malice, deceitful conduct by the Plaintiff.

Contravention of Australian public policy and violation of natural justice.

Banking malpractice resulting in significant economic loss to the Defendant.

1. Insofar as they include matters within the considerations set out in s 7(2)(a)[9] they include submissions that the registration application be set aside under:

(a) s 7(2)(a)(v): on the basis that the defendant was denied procedural fairness;

(b) s 7(2)(a)(vi): on the basis that the judgments were obtained by fraud; and

(c) s 7(2)(a)(xi): on the basis that the judgments were contrary to public policy of Australia.[10]

1. The defendant says he was denied procedural fairness on the basis that he was not personally served with the proceedings and only became aware of them when a friend of his alerted him to an advertisement in a local paper of the bankruptcy application. The defendant asserts that, 'there was no evidence presented to the court that the plaintiff had taken adequate steps to serve the defendant, either to a known address or via email.' The defendant further submits that, on 1 July 2020, by urgent application the plaintiff obtained an order for substituted service ('Substituted Service Order'), of the bankruptcy application at a postal address in Australia, as well as an email address identified by the plaintiff. The Substituted Service Order permits service to be effected on the defendant '... through his current known email address...'.
2. In his third affidavit, Mr Rano says the defendant's identified email address 'has at all material times been used by the Plaintiff to communicate with the Defendant historically.' The defendant submits that if these addresses were always known and used, then service could easily have been effected in that manner and the only reason it was not effected in that manner was because the plaintiff engineered a situation where a service method would be used that would not come to the defendant's attention, therefore a default judgment could be entered.
3. The defendant's evidence that he was not personally served with the $1m Facility Claim or $5m Facility Claim, and that he did not know of them, was uncontested and I accept it. As discussed above, once the defendant became aware of the Bankruptcy Proceeding he engaged a lawyer to represent him in it.
4. Several matters are relevant to the question of procedural fairness. First, it is clear that prior to the issue of the proceedings, the defendant was aware of the demands being made pursuant to the guarantee, as he has exhibited correspondence to his affidavit including:

(a) a letter which appears to be dated 17 July 2017, responding to a letter of demand dated 14 July 2017;

(b) a letter dated 21 September 2017 from the plaintiff's lawyer demanding payment of SBD $661,634.56 pursuant to the $5m Facility; and

(c) a letter dated 21 September 2017 from the plaintiff's lawyer demanding payment of SBD $1,903,707 pursuant to the $5m Facility.

1. Secondly, the defendant submits that the plaintiff's application for substituted service clearly demonstrates 'that [the plaintiff] was always very well aware of the defendant's address and also the e-mail address.' This is raised in support of the defendant's submission that there was some impropriety in the plaintiff not personally serving the defendant with process in the $1m Facility Claim and $5m Facility Claim, and that the failure to serve at those known addresses was a denial of natural justice. The defendant goes so far as to suggest that the High Court of Solomon Islands was complicit in the denial of natural justice by not interrogating the question of service further.
2. There are some parallels between the matters discussed in Yin v Wu[11] ('Yin v Wu') and the present case. One of the issues in Yin v Wu was where the onus lay on proof of service.[12] In that case, process was served by public announcement in China. Mr Yin gave uncontested evidence that he was not personally served with the court process, and that he did not know of the proceedings prior to judgment. The Court of Appeal held that as that evidence was uncontested, it should have been accepted, in which circumstances there was a prima facie case for denial of natural justice.[13] Mr Wu argued (successfully at first instance[14]) that, even after it was established that personal service was not effected and Mr Yin did not know of the proceeding, the onus lay with Mr Yin to prove that he was not served by authorised means under Chinese Law, and further that public announcement was an authorised means.[15] The Court of Appeal agreed with Mr Yin and held that once Mr Yin had established that he had not been personally served, the onus lay on Mr Wu to prove the content of Chinese Law, and that service was effected in accordance with it.[16] In considering whether Mr Wu had done that, the Court observed that:

the statement in the Chinese judgment, without reasons, that Yin had been 'legally summoned' was not sufficient to displace Yin's prima facie case of denial of natural justice.[17]

1. In this case, there is no evidence of the content of Solomon Islands law.[18] The plaintiff submitted that the Court should proceed on the basis that rules and procedures were followed, so it seemed, by the statement in the judgment that there had been substituted service and a presumption of regularity in the decisions. But I do not consider that Yin v Wu permits such an approach, or that there is sufficient evidence before me to draw conclusions as to what process, other than personal service, was available for service of the $1m Facility Claim and $5m Facility Claim, or whether such processes were followed.[19] The plaintiff's submissions are that:

Registrar Myonnie Samani of the High Court of the Solomon Islands in their Judgment dated 8 December 2017 relied upon the Sworn Statement of Mr Brian Papage, Process Server, in finding the Defendant was served on 2 November 2017 ...

1. However, the $5m Facility Judgment merely states:

UPON READING the Claim-Category B filed on 1 November 2017, Sworn Statement of Mr Papage filed on 6 December 2017, Application for Judgment and Sworn Statement of Mr Fernando filed on 7 December 2017

1. There is nothing in the $5m Facility Judgment stating that Mr Papage is a process server or what he did purportedly in performance of the requirements of a substituted service order, the contents of which are unknown. Further, it does not suffice as proof of the content of Solomon Islands law as to service.
2. At best the Court may be asked to draw an inference that process was served in compliance with substituted service obligations. But the onus lay on the plaintiff to prove what the law relating to substituted service was, the terms of the substituted service order, and what was done to comply with it. In the absence of such direct and presumably available evidence, I am not satisfied that service has been effected within the rules of substituted service in Solomon Islands law.
3. I note also that the $1m Facility Judgment dated 21 February 2018 contains no reference to any affidavits of service.
4. That is not the only hurdle the plaintiff faces. The Court of Appeal in Yin v Wu further considered that, even if substituted service was effected pursuant to foreign rules, that does not mean there has been no denial of natural justice.[20] The Court indicated that there will be, at least, a prima facie denial of natural justice where substituted service is effected in accordance with foreign rules, where there are known electronic means by which service could have been effected. The point was discussed in Yin v Wu as follows:

Xu v Wang, a decision of Cameron J, is closer to the facts in this case because it involved evidence of Chinese law concerning service by public announcement in circumstances where the whereabouts of the person to be served is unknown or service of process is not possible by any other means. In that case, while a proceeding in Victoria was on foot between the parties, the plaintiff commenced another proceeding against the defendant in China in respect of the same claims and did not inform the Chinese court of the proceeding in Victoria. In circumstances where the plaintiff knew of the defendant's whereabouts, and the parties had solicitors acting for them in the Victorian proceeding, it was held that service of the Chinese proceeding by public announcement was a denial of natural justice and, for this and other reasons - including that the Chinese proceeding was an abuse of process - the Chinese judgment was not recognised by the Court.

Applying the approach taken in these cases, even if Wu had established by admissible evidence that service of the Chinese proceeding was legally effected on Yin by some form of public notice - albeit one which did not come to Yin's attention - the Court should not have recognised the Chinese judgment on a summary basis. This is because at the time Wu commenced the Chinese proceeding he well knew of a number of alternate means of giving notice of the proceeding to Yin, namely, by Twitter, WhatsApp and Telegram. Indeed, Wu's case in the Chinese proceeding and in this Court was based on money paid under an alleged contract made by these means. In these circumstances, there is a case to be investigated at trial as to whether Wu informed the Chinese court of these alternative means of giving notice of the Chinese proceeding to Yin.

Before leaving the natural justice issue, we note that the judge stated that the court's assessment of whether there has been a denial of natural justice in obtaining a foreign judgment is 'ordinarily based upon the rules and procedures of that foreign jurisdiction'. A similar statement appears in Nygh as to the court's assessment of foreign procedures:

It matters not that the forum would not have dispensed with notice in the same situation, although a line would have to be drawn somewhere as in the case where the rules of a foreign court dispensed with the need of giving a foreign defendant any form of personal notification even in peacetime.

In our view, in considering whether natural justice has been provided, modern courts should move with the times in their assessment of the sufficiency of foreign modes of service which do not aim to give defendants personal notification by the many electronic means now commonly available. Courts should draw the line and look unfavourably on modes of service by foreign courts which do not attempt to give notice by such means where a defendant's physical whereabouts are unknown but electronic notice in some form is possible.[21]

1. After the hearing of this application concluded, the parties were invited to make further submissions in relation to the principles in Yin v Wu, which had not been addressed at the hearing_._ The plaintiff submitted first, that:

As observed by the Court of Appeal in that matter, in considering whether there has been a denial of natural justice in obtaining a foreign judgment, the Court's assessment is 'ordinarily based upon the rules and procedures of that foreign jurisdiction.'

1. That is a slightly distorted view of what was said by the Court of Appeal. In stating what 'ordinarily' occurred, the Court of Appeal was quoting what the trial judge had said, but that statement was qualified by the following paragraph in which the Court of Appeal rejected that approach.
2. Secondly, the plaintiff submitted:

To this end, this Court will have regard to the Sworn Statement of Mr Brian Papage, Process Server, sworn 6 December 2017 (as found in the Affidavit of Wilson Rano filed 8 December 2024, Exhibit WR-1 at page 26), in support of the conclusion that service of the Originating Process in the Solomon Island Proceedings was effected on the Defendant Company through its registered office address pursuant to s 201(c) of the Corporations Act 2009 (Solomon Islands).

1. Contrary to this submission, there is no affidavit or sworn statement of Mr Papage exhibited to Mr Rano's affidavits to which this Court can have regard. Page 26 of the exhibit is a copy of the Judgment in Default in proceeding 520 of 2017 dated 8 December 2017. That judgment contains the statement that:

UPON READING the Claim- Category B filed on 1 November 2017, Sworn Statement of Mr Papage filed on 6 December 2017, Application for Judgment and Sworn Statement of Mr Fernando filed on 7 December 2017 ...

1. Mr Papage is not identified as a process server and there is no evidence as to what he did in purported performance of whatever substituted service order may have been made.
2. Thirdly the plaintiff submits:

The Court will further note that the High Court of the Solomon Island was ultimately satisfied that service had been effected in entering Default Judgment against the Defendant Company; a mechanism of which included Orders as against Mr Pinto to meet the Judgment Debt pursuant to his Personal Guarantee in the event of default.

To this end, what is apparent from the High Court of the Solomon Islands as the Superior Court of the Country, on its own motion and applying its own processes (for which there is no suggestion on the materials that it does not have the requisite power to do so) made ancillary Orders enforcing the Personal Guarantee against Mr Pinto having been satisfied that the Defendant Company was liable for the Judgment Debt.

1. This submission is effectively that, based on the statement in the judgment that the Court relied on the 'sworn statement of Mr Papage', this Court should infer that a substituted service order was made, infer that Mr Papage was a process server, infer that service was effected in accordance with that order by Mr Papage, and infer that the Court was satisfied that service had been effected by Mr Papage in accordance with that order. They are not inferences that I am prepared to draw, particularly where the plaintiff bore the onus of proving the content of Solomon Islands law and the performance of obligations of service, and having regard to the Court of Appeal's rejection of such an approach in Yin v Wu. Even if those matters were proved, the failure to serve by available electronic means remains a significant hurdle having regard to what was said by the Court of Appeal in Yin v Wu.
2. Fourthly the plaintiff submits:

Having regard to the above, if it is accepted that service was properly effected on the Defendant Company (as deemed to be by the Superior Court of the Solomon Islands), then it follows that Mr Pinto, in his capacity as Director of the Defendant Company and in his personal capacity, despite being aware of the proceedings, simply failed to participate in the same at that time.

1. Because the plaintiff has not proved the law of the Solomon Islands, or the contents of any substituted service order, or what was done in purported compliance with any substituted service order, I cannot conclude that there has been 'deemed service.' Further, the submission that the defendant failed to participate, 'despite being aware of the proceedings', seems to be unfounded. 'Awareness' involves an element of knowledge, and the defendant has given uncontested evidence that he did not know of the proceedings prior to judgment being entered.
2. In the circumstances, I conclude that the defendant was prima facie denied natural justice by reason of the failure to serve the $1m Facility Claim and $5m Facility Claim on him by known means, including by email or at his residential address in Australia. The defendant's evidence is that such methods of service would have brought notice of the proceeding to his attention, and I accept it.
3. The question then is whether that prima facie denial of natural justice is displaced or cured. Two matters are relevant in this regard:

(a) the availability of appeal processes and the defendant's representation in opposition to the bankruptcy notice; and

(b) the merits of the defendant's position.

Consideration of Availability and Exercise of Appellate Processes

1. In Zarah Garde-Wilson v Legal Services Board[22] ('Garde-Wilson') the Court of Appeal considered whether a denial of natural justice at trial level may be cured by the availability of appellate processes. In Garde-Wilson Dodds-Streeton JA quoted what was said by Megarry J in Leary v National Union of Vehicle Builders[23] ('Leary') where His Lordship observed:

If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving a member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.[24]

... the persuasive recognition in Leary that a complete rehearing de novo by an appellate or review tribunal standing in the shoes of an original decision-maker may not, in every case, constitute an answer to a denial of natural justice by the original decision-maker.

There is, in this context, 'no clear and absolute rule'. The Privy Council has recognised the principle that a plaintiff is entitled to both a trial and an appeal conducted in accordance with natural justice may not apply where, for example, the parties can, by reference to the applicable rules and contractual context, be taken to have 'agreed to accept what in the end is a fair decision, notwithstanding some initial defect.'

In other instances, however, an examination of the 'whole hearing structure, in the context of the particular activity to which it relates' may lead to the conclusion that, as in Leary, 'a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage.'[25]

1. I will proceed on the basis that there is no clear and absolute rule that a denial of natural justice at trial level cannot be cured by sufficient natural justice at appellate level. That principle is reflected in the terms of s 8 of the FJ Act which provides:

Stay of enforcement of a registered judgment

(1) If the court in which a judgment is registered is satisfied that the judgment debtor has appealed, or is entitled and intends to appeal, against the judgment, the court may order that enforcement of the judgment be stayed pending the final determination of the appeal, until a specified day or for a specified period.

(2) If the court in which a judgment is registered makes an order on the ground that the person is entitled and intends to appeal against the judgment, the court must require the person, as a condition of the order, to bring the appeal by a specified day or within a specified period.

(3) Every order is to be made on the condition that the judgment debtor pursues the appeal in an expeditious manner.

(4) An order may be made or such other conditions, including conditions relating to giving security, as the court in which the judgment is registered thinks fit.

1. After the hearing in this matter, the parties were invited to make further submissions in relation to the principles in Garde-Wilson which had not been raised_._
2. The plaintiff submits that a foreign judgment will be treated as 'final and conclusive' irrespective of any pending appeal, or whether it may still be subject to appeal, but submit that neither of the Solomon Islands Judgments sought to be registered is subject to appeal and the time frames for bringing any such appeal have long since expired. The evidence in relation to that is, 'as at the date of swearing this affidavit, there are no outstanding appeals or review of any of the above decisions.'
3. The defendant does not explain what steps he could have taken, or give any explanation for his conduct.
4. As noted by Dodds-Streeton JA, in the absence of contractually agreed dispute resolution regime (or the like), the decision as to whether natural justice has been afforded should be made having regard to the 'whole hearing structure, in the context of the particular activity to which it relates'.[26] In this case, there is no evidence of the whole hearing structure. The plaintiff bore the onus of proving that 'structure' if it wished to establish that natural justice had been afforded despite a lack of personal notice by available electronic means. However, the only evidence filed by the plaintiff is that of Mr Rano who is a director of the plaintiff, and he does not give evidence as to the content of Solomon Islands law. That being the case, and consistently with the Court of Appeal authority in Yin v Wu, I am unable to reach any conclusion as to the nature of any appeal open to the defendant. It is unclear for example, whether the appeal process would permit a hearing de novo, or only on questions of law. Nor is it clear whether special circumstances might need to be established. In the absence of such evidence, I am not satisfied that the natural justice is adequately afforded to the defendant by the availability of an appeal process, where he has prima facie been denied natural justice at trial level.
5. A further matter arose after the hearing of this application that goes to the issue of the appeal process, but also as to the merits. During the hearing the defendant submitted that at the hearing of his opposition to the bankruptcy notice, the judicial officer hearing the matter refused to permit the defendant's legal representative to present the case because 'he was too young.' The plaintiff resisted this submission, on the basis that there was no evidence in relation to it and it was no more than an assertion from the bar table.
6. On 5 December 2024, shortly after the hearing of this application ended, the defendant emailed the Court in support of his submission stating:

...that the Lawyer who was representing me in the Solomon Islands was dismissed by the Judge in the Solomons due to his seniority. This instance has practically shut the door for me and allowed a default judgment to be attained by the Plaintiff. Now the same judgment is in front of his Honour's court.

I am unsure if this submission is admissible or not. However, attached should his Honour require any verification of my statement.

1. The attachment to this email is dated 17 August 2021, from Mr William Jonga to the defendant and states:

Kutila Pinto,

Update on the three cases.

HCC 266 of 2020

Matter was struck out, basically for non-attendance. we agreed on a date, 28th April 202 (sic), the matter was heard on the 20th April 2020 without our knowledge.

HCC 520 of 2017

Matter was listed for 30th April 2021, Rano was attending a funeral service, so the matter was adjourned, no date has been agreed on to hear this matter.

HCC 519 of 2017

This matter was also being struck out by the court when I appeared without supervision from fully admitted barristers.

I have been working on the file, and it is my opinion that we do not have a meritorious defence. The initial loan was defaulted, the refinancing was also being defaulted. The Approach I think we would take, is to challenge the Bankruptcy proceedings. In relation to HCC 519 of 2017, and HCC 520 of 2017 it would be unlikely to succeed without any justifiable reasons on why defaults occurred. We will update you on any developments on these cases.

1. The plaintiff's position in relation to this email, was sent by email dated 6 December 2024 to the Court, and was as follows:

... while the email is likely against [the defendant's] own interest, we do not object to the Court seeing and admitting the same.

While the document largely speaks for itself, we note having regard to the date of the document and on a plan reading of its contents, it appears that [the defendant] filed an Application in the High Court of the Solomon Islands to have the original Default Judgments set aside, which on its face, was abandoned after receiving legal advice as to its prospects.

We would otherwise note that the reasons given by Mr Jonga in his email to [the defendant] as to the outcome of the three cases would be highly irregular if accepted, and in circumstances where the same is not supported by any primary source materials, we would ask the Court treat the same with caution.

1. The defendant further responded by email to the Court dated 7 December 2024, as follows:

1. Purpose of Submission

The sole intention of submitting the email is to demonstrate that Mr. Jonga, a lawyer within my former legal representative, was dismissed due to his lack of seniority, as noted in his correspondence.

2. Irrelevance of Opinions Expressed

Any opinions expressed by Mr. Jonga regarding the prospects of challenging the default judgment are entirely his own and did not influence or form the basis of my subsequent actions.

3. Dismissal of Mis-characterisation

I respectfully assert that the plaintiff's counsel Mr. Hogg's attempt to rely on this email for their own interpretation misconstrues its purpose. The email's content, beyond the fact of Mr. Jonga's dismissal, is subjective and cannot reasonably be treated as a basis for undermining my position in these proceedings.

1. A number of questions arise as a result of the content of the email dated 17 August 2021. First, Mr Jonga states in relation to the $5m Facility that the 'matter listed for 30 April 2021 ... no date has been fixed.' As the $5m Facility Judgment was made on 8 December 2017, Mr Jonga's statement in August 2021 that 'no date has been fixed' must refer to a different hearing. That may be an appeal, but it is not clear. In any case, it does not appear that the appeal proceeded, and it is unclear why any such appeal did not. As stated above, the fact that the defendant may have had appeal rights, and may even have exercised them, or chosen not to, does not necessarily displace a prima facie denial of natural justice.
2. Second, Mr Jonga states that in relation to the $1m Facility that it 'was ... struck when I appeared without supervision from a fully admitted barrister.' As noted above, the $1m Facility Judgment was entered on 21 February 2018 and the defendant says he did not know of this proceeding, until a friend informed him of an advertisement of the Bankruptcy Proceeding, which was issued on 18 June 2020. It appears from the above that an appeal or similar type of application was made (perhaps in the context of an application in the Bankruptcy Proceeding), but was unsuccessful because (if the email is accepted on its face), Mr Jonga appeared without proper supervision.
3. Having regard to the above, it is unclear what appeal rights the defendant had or attempted to exercise. Further, even if he unsuccessfully exercised appeal rights, that does not mean he was afforded natural justice. Whether he was afforded natural justice depends upon a consideration of the, 'whole hearing structure, in the context of the particular activity to which it relates'.[27] There is insufficient evidence before me to conclude that such opportunities as he was afforded by the appeal process are sufficient to displace the prima facie denial of natural justice as a result of the failure to notify him of the proceedings by known electronic means.

1. The parties have each addressed the question of the merits of any defence. The extent to which a court can consider the merits of any judgment on a registration application is limited. In Kok v Resorts World at Sentosa Pte Ltd[28], Martin CJ (Murphy and Beech JJA agreeing) held that:

... an application to set aside registration of a foreign judgment is not an occasion for a court to review the merits of the foreign decision by reference to the law of the relevant jurisdiction, nor can registration be set aside even if it is apparent that the foreign court has erroneously applied the law of the jurisdiction in which the judgment has been registered.[29]

1. That principle was expressed in the context of assessing the merits of the judgment that is sought to be enforced. But I take that principle to apply to consideration of the merits of any defences that may be available to a party against whom default judgment has been entered. Accordingly, the merits are of very little, if any, weight, but I will address them briefly as the parties made submissions.
2. In this case, Mr Jonga expresses an opinion that there is no defence on the merits. If that were correct then it may be that the defendant has not been denied an opportunity to defend the claim against him. Further, in terms of the defendant's public policy argument, an order setting aside a foreign judgment where there is no meritorious defence, may be contrary to principles as to how parties should act, such as those expressed in s 18 of the Civil Procedure Act 2010 (Vic). That section provides that a person must not make a claim, or response to a claim, 'that does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis.'[30] However, it appears that Mr Jonga is an inexperienced practitioner (not holding the necessary qualifications under Solomon Islands law to appear in court), and it is unclear what other, or subsequent, advice may have been obtained.
3. Another matter raised by the defendant concerns questions around the sale of the property, that was provided as security for which the defendant was guarantor. The defendant has exhibited a valuation of the property that secured the debt as SBD $5,500,000, a short time before the sale on a developed basis, but SBD $1,000,000 for site value. He then says that the property had been developed to a roofing stage but was sold in the exercise of the power of sale under the loan agreements for SBD $1,000,000. The defendant says this was well below market for the property, and further supports his argument that the plaintiff has behaved improperly and that he has a defence.
4. Ultimately, there is insufficient evidence before me regarding the merits to conclude that there is no arguable defence. In any case, as discussed above, an application in relation to registration of a foreign judgment is not the occasion to review the merits of the judgment by reference to the law of the jurisdiction.
5. In those circumstances the prima facie denial of natural justice is not cured by the availability of appeal processes or by reasons of lack of any meritorious defence. That is a sufficient basis upon which to decline to register the Solomon Islands Judgments.
6. A number of other submissions were made by the defendant. Having regard to the above, it is unnecessary to deal with them, but as they were addressed in submissions I will briefly address them below.

1. The defendant submits that the loans were enforced in circumstances that constituted a 'malicious attempt to harm' him and were 'grounded in corporate power struggle rather than in any legitimate lender-borrower dispute.' The defendant relies on the decision of Sayers v International Drilling Co NV[31], in support of his submission that a judgment obtained through improper influence, malice or lack of fairness would be unenforceable. He further submits that registering the judgments in this case would 'undermine principles of equity, fairness, and due process central to Australian public policy.'

1. The defendant says he was defamed by the circulating of a letter in January 2017 and 'by advertising a Bankruptcy notice with a photo of the Defendant in national newspapers in the Solomon Islands without a court order.' He then goes on to say he has suffered loss as a result and has been in fear for his safety.
2. The defendant's submissions as to defamation are not relevant to the question of whether the Solomon Islands Judgments should be registered. If such complaints are legitimate, then presumably they can be brought in the Solomon Islands and to the extent the defendant obtains judgment he may seek to recover.

(a) majority shareholders 'accused [him] of engineering a 'Fit and Proper Person' test;

(b) the 'malicious intent' in the proceedings stemmed from an 'internal power struggle';

(c) the plaintiff's controlling shareholder convened an extraordinary general meeting where it 'unlawfully' removed the board; and

(d) he was 'falsely accused of fraudulent educational qualifications.'

1. None of these matters directly address the registration of an extant judgment. If there were internal issues with the companies referred to, then presumably the defendant was at liberty to raise them in an orthodox fashion. There is no evidence that he ever attempted to do so. None of these corporate governance matters constitute grounds upon which to refuse registration of the Solomon Islands Judgments.

1. The defendant submits that the bank behaved inappropriately in seeking to demand repayment of a loan that was tied to a construction project. But the terms of the loans and Corporate Guarantee Agreement were either enforceable under law or not. If they were limited by the circumstances of construction then presumably that argument was, or could have been, raised by the defendant. If the proper construction of the agreement permitted enforcement then any practical difficulties experienced by the defendant are a product of the agreements, that he entered and not any relevant misconduct.

1. Insofar as the defendant submits that the Solomon Islands Judgments were tainted by fraudulent conduct by the plaintiff and the courts, I do not accept that any such conduct has been established.
2. The plaintiff submits that fraud allegations must be properly particularised and the defendant has not done so. The plaintiff relies on the decision of Tianjin Yingtong Materials Co Ltd v Young[32] in which Harrison AsJ rejected the submission that foreign judgments should not be registered because they were tainted by fraud. The basis of the decision was that the allegations of fraud were made without adequate details. It was discussed as follows:

The law requires that the defendant must establish fraud, once the plaintiff has established the prima facie enforceability of the judgment. Critically, such fraud must be strictly proved. A mere suspicion of fraud (even if raised by fresh facts later discovered, which is not the case here) is not sufficient to secure relief. Further, it must be shown by admissible evidence that the successful party, in this case the plaintiff, was responsible for the fraud.[33]

1. I agree with the plaintiff, that the defendant has not established any grounds of fraud in the sense discussed. The conduct complained of occurred in a commercial context against a background of complicated personal relationships. None of that is sufficiently transparent on the evidence that any clear finding of fraud can be made. The defendant's evidence is largely assertion, and rests heavily on his perception of the motivations behind actions rather than the actions themselves. It is not clear what, if any, conduct may have been strict insistence on contractual rights, and what, if anything, may have constituted fraud. For those reasons I would not decline to register the Solomon Islands Judgments on the basis of fraud.

1. The defendant submits that the registration of the Solomon Islands Judgments would be against public policy because they, 'contradict Australian standards of justice, fairness and procedural integrity.' The defendant relies generally on the matters discussed above in support of his submission. The plaintiff submits that there are no public policy grounds to refuse registration. The plaintiff relies on the decision of Bell CJ in Nyunt v First Property Holdings Pty Ltd[34], in particular that if there were grounds that there had been an abuse of process, such arguments could have been raised in the foreign court. The fact that they were not undermines any argument that this Court should refuse registration on public policy grounds.
2. For the reasons stated above, I reject that submission.
3. A further matter bears upon whether the judgments should be registered, although the parties did not address it, and having regard to the above, it is not determinative. One of the grounds upon which registration can be set aside (or registration refused) is:

that the judgment was registered for an amount greater than the amount payable under it at the date of registration.[35]

1. In this case, the plaintiff seeks to register the $5m Facility Judgment, which is for the amount of SBD $1,903,707.00, and the $1m Facility Judgment which is for payment of the amount of SBD $661,634.56. Those figures are at odds with the later judgment dated 29 August 2019, of Keniapisia J of the High Court of Solomon Islands, which granted leave to the plaintiff to enforce against the defendant and ACE in the sum of SBD $1,659,447.27. It appears from the terms of these orders that the registration of the $5 Facility Judgment alone would be 'for an amount greater than the amount payable under it at the date of registration.' Although as indicated, it is unnecessary to make any findings in relation to this.

(a) the defendant, could have been, but was not, served personally with the originating process at his known email address. The result was that the Solomon Islands Judgments were entered in circumstances where the defendant did not know of the proceedings;

(b) the failure to serve the defendant by email is sufficient to establish that he was, prima facie, denied natural justice;

(c) to the extent the plaintiff sought to rely on substituted service, the plaintiff bore the burden of establishing the law of the Solomon Islands as to alternative methods of service, and the manner in which such service was effected. The plaintiff did not discharge that burden;

(d) even if the defendant was served by accepted substituted service means, he was nonetheless denied natural justice because he could have been served by known electronic means at his email address; and

(e) the prima facie denial of natural justice is not cured or remedied by available appellate processes. There is insufficient evidence of what appeal processes were available and could have been, or were, exercised by the defendant.

1. In those circumstances the application for registration of the Solomon Islands Judgments is refused. I direct the parties to provide draft orders reflecting these reasons and as to costs, if they can be agreed.

[1] The only defendant to the $5m Facility Claim on its face is B&L.

[2] The only defendant to the $1m Facility Claim on its face is B&L.

[3] Foreign Judgments Act 1991 (Cth) ('FJ Act') ss 5(1) and 6(2); Foreign Judgment Regulations 1992 (Cth) sch 1 in which the High Court and Court of Appeal of the Solomon Islands is listed; FJ Act s 6(1) provides that an application may be made 'at any time within 6 years after the date of judgment,' which is by 8 December 2023 in relation to the $5m Facility Judgment and 21 February 2024 in relation to the $1m Facility Judgment. This proceeding was issued on 8 December 2023.

[5] Bao v Qu; Tian (No 2) [2020] NSWSC 588 (Rothman J).

[11] [2023] VSCA 130 ('Yin v Wu').

[12] Yin v Wu (n 11) [79], [82]-[83].

[14] Ibid [1] regarding the application for summary judgment.

[21] Yin v Wu (n 11) [106]-[109] (citations omitted).

[22] [2008] VSCA 43 ('Garde-Wilson').

[23] [1971] 1 Ch 34.

[24] Garde-Wilson (n 22) [108] (Dodds-Streeton JA), quoting Leary [49] (Megarry J).

[25] Ibid (n 22) [111]-[113] (citations omitted).

[26] Garde-Wilson (n 22) [113] (citation omitted).

[27] Garde-Wilson (n 22) [113] (citation omitted).

[28] [2017] WASCA 150; (2017) 323 FLR 95.

[29] Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150; (2017) 323 FLR 95 [16] (citations omitted); [2017] WASCA 150 [16], Martin CJ (Murphy and Beech JJA agreeing), citing Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381, 402 (Higgins J).

[30] Civil Procedure Act 2010 (Vic) s 18(d).

[31] [1971] 1 WLR 1176.

[32] [2022] NSWSC 943; Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563, [573]; Keele v Findley (1990) 21 NSWLR 444.

[33] Tianjin Yingtong Materials Co Ltd v Young [2022] NSWSC 943 [25].

[34] [2022] NSWCA 249.