RDCW Diamonds Pty Ltd v DA GLORIA

RDCW Diamonds Pty Ltd v DA GLORIA - [2006] NSWSC 450 - NSWSC 2006 case summary — Zoe

[16]

15 On 16 March 2006, after hearing full argument on all motions, I granted the plaintiff leave to file an affidavit relating to the current status of debt and gave the defendant leave to reply to any affidavits and, otherwise, reserved judgment. Pursuant to that leave, an affidavit of Todd Porman was filed on 17 March 2006, to which affidavit objection was taken. A further affidavit of Todd Porman was filed on 28 March 2006. On 7 April 2006, well outside the time permitted for the filing of any further affidavit, after contact from the Court, the solicitors for the defendant advised that they were "in the process of preparing an Affidavit in Response and hope to have it to you shortly." On 20 April 2006, the Court contacted the solicitors for the defendant again and directed that any further affidavit be required by 4 pm 21 April 2006. The Court was informed that the solicitor for the defendant was overseas and would be returning to the office on 26 April 2006. An affidavit was faxed to the Court in the evening of 26 April 2006. Evidence and Attitude of Parties 16 The plaintiff relies upon two formal affidavits sworn by Todd Porman. To the first affidavit of 21 July 2005 were annexed the aforementioned South African Court documents, described in the affidavit as "true copies of the following documents". After the affidavit was formally read, there was cross-examination of Mr Porman after which counsel sought to object to the paragraph of the affidavit describing the annexures and to the annexures themselves on the basis that Mr Porman could not attest to their truth as copies from personal knowledge. Lack of personal knowledge is not obvious from the affidavit. There had been no cross-examination of Mr Porman as to the extent of his personal knowledge of the documents annexed. The documents themselves purport to be Court documents. The cross-examination was not on the voir dire and the degree to which the witness could attest to the documents fitting the description in the affidavit was a matter on which the witness could give evidence and be cross-examined, but was not. I disallowed the objection. 17 For the plaintiff, the evidence before the Court proved, on the balance of probabilities, that the documents were copies of those giving rise to the proceedings before the South African Court, of the Notice to the Defendant of the South African proceedings, of the submission to the jurisdiction of the South African Court by the defendant, and of a judgment debt of US$927,000 plus interest as specified above.

[17]

18 South Africa is not a participating State for the purposes of the Foreign Judgments Act 1991 (Commonwealth) and the South African Court is, consequently, not a scheduled court for the purposes of that Act or the Regulations made pursuant thereto. Therefore, the plaintiff relies upon the common law for the recognition and enforcement of the judgment of the South African Court. 19 In the proceedings before this Court, the defendant relied upon an affidavit of Salvatore Russo sworn 17 February 2006. The form of that affidavit is, to say the least, unusual. The body of the affidavit, in its totality, states: "Refer Annexure 'A' - Affidavit". It then attaches a document titled "Annexure A", which commences with the words "I say on oath" but contains no jurat. The affidavit does not swear to the truth of the annexure. The annexure, of some six pages or 32 paragraphs, alleges the existence of a business relationship between the defendant and a Mr Sean Cohen, who was said to be a principal of the plaintiff. The annexure describes the circumstances in which the defendant obtained diamonds for the plaintiff and the arrangements for payment. Those circumstances include the defendant obtaining diamonds in Angola, bringing them into South Africa, and providing them to the plaintiff; the arrest of the defendant seemingly for customs offences; and the allegation that no monies were owing, at the time of the proceedings before the South African Court or at all. The annexure also alleges a suspicion on the part of the defendant that the plaintiff, or persons on its behalf, paid officials in South Africa to fabricate the claim and engineer the arrest of the defendant. 20 The annexure also alleges that a proper accounting did not occur in relation to the profits arising from the business relationship between the plaintiff and the defendant. 21 Paragraph 31 of the annexure is in the following terms: "I am instructed that my client has spoken to Mr Vanrhyn the solicitor he employed in South Africa and a conversation took place to the following effect: My client: 'Do you still have my file in respect of proceedings commenced by Rand Diamond Cutting Works?' Cohen: 'I don't think there is much of it still available as the matter is so old but I will make enquiries and get back to your solicitor in Australia.'" The reference to Rand Diamond Cutting Works is a reference to the plaintiff, RDCW Diamond Pty Ltd. Notwithstanding the terms of the annexure the Court assumes the reference to "Cohen" is actually a reference to Mr Vanrhyn.

[18]

22 It should be made clear that the whole of the annexure to the affidavit of Salvatore Russo purports to repeat instructions. Although there is no evidence of the source of these instructions, I will assume, although it is not stated in the annexure, that the instructions come from the defendant. The circumstances, day, date and time of those instructions are not given in the annexure. 23 The terms of paragraph 31 confirm that the defendant knew of the proceedings in South Africa and had engaged lawyers to act for him. 24 The defendant continued to press before the Court its claim that the proceedings should continue by pleadings and that the Court should require the plaintiff to file a Statement of Claim to which, it says, the defendant would file a Defence. Further, as I understand the submission, the defendant asserts that the plaintiff is neither suing on the original cause of action nor seeking to enforce the alleged judgment of the South African Court. 25 A fair construction of the summons supports the submission that the defendant is not suing on the original cause of action. The originating summons is in the following terms: "Pursuant to judgment granted against the Defendant in case number 21807/98 in the High Court of South Africa … an order that: 1.1 the Defendant pay to the Plaintiff an amount …" and thereafter the summons set out the monetary claim, the claim for interest, and costs of the South African proceedings and these. 26 While the terms of the summons could be more clearly drafted, the intention of the summons was to enforce in Australia the judgment obtained in the South African Court or, if it be different, to sue in Australia for a liquidated sum, being the judgment debt, a debt arising from the judgment of the South African Court, proof of which debt is the judgment in South Africa: see Delfino v Trevis (No 2) [1963] NSWR 194 at 196; Godard v Gray (1870) LR 6 QB 139 at 150. 27 With the exception of two matters, to which I will return, the affidavit of 27 April 2006, to which objection is taken, does little more than confirm, in better form, the instructions originally contained in the annexure to the earlier affidavit filed by the defendant. I take account of the fact that the later affidavit provides far more details, but essentially recites the same circumstances upon which the defendant earlier relied.

[24]

36 The Notice of Motion filed by the plaintiff sought an order pursuant to Part 15 Rule 26 of the Supreme Court Rules, which, at the time the Notice of Motion was filed, was applicable. Since the date of the filing of the Notice of Motion, the Uniform Civil Procedure has come into force. Rule 15.26 of the Supreme Court Rules is the equivalent of rule 13.2 of the UCP Rules. It deals with the striking out of a pleading, not summary judgment. Uniform Civil Procedure Rule 13.1 deals with summary judgment (SCR Part 13 Rule 2). Nevertheless, since the Notice of Motion was filed, on 21 July 2005, it has been treated in the proceedings, and described by both parties, as a motion for summary judgment and the defendant could have been under no illusions as to the nature of the motion before the Court. The defendant submits that, because the plaintiff relies upon the wrong rule, the Court either should not or cannot grant summary judgment. The defendant suffers no denial of natural justice in these proceedings and was aware of the nature of the orders sought by the plaintiff. 37 There is no reason why, on the basis that the wrong rule has been specified, if there were otherwise grounds for the granting of summary judgment, summary judgement should not issue. 38 On the basis of the evidence before the Court, the plaintiff has shown a cause of action to which there is no defence. In circumstances where a foreign judgment is sought to be enforced and the only arguable matters raised are matters properly determined by that foreign judgment, or in those foreign proceedings, a sufficiently clear case has been made out within the Rules that there is no defence and the principles governing an application for summary judgment have been satisfied: see General Steel Industries Inc v Commissioner for Railway (NSW) (1964) 112 CLR 125. 39 The foreign judgment is in US dollars and it is appropriate that any order of this Court issue in US dollars. The foreign judgment orders the payment of interest at 15.5 percent per annum from 11 September 1998 and it is appropriate that an order be made for the interest up until the date of this judgment. Hereafter, interest will accrue at the rate applicable to a judgment of the Supreme Court and s.101 of the Civil Procedure Act 2005 applies. The interest payable under s.101 of the Civil Procedure Act is not to be calculated on the interest payable under the judgment of the South African Court. If not otherwise clear, interest is not payable on interest and, further, the interest payable under s.101 of the Civil Procedure Act shall be in substitution for and not in addition to any interest otherwise payable for the same period.

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