Severstal Export GmbH v Bhushan Steel Ltd

Court of Appeal (NSW)|2013-02-01|Before: Bathurst CJ, Beazley P, Barrett JA, Sackar J

Judgment 1BATHURST CJ: This is an appeal from orders made by a judge of the Equity Division of the Court ("the primary judge") restraining the appellant from removing from Australia cheques delivered by Jones Day to Mallesons Stephen Jaques on 13 October 2011 in the sum of $2,670,016.65 or the proceeds thereof. The order was made pursuant to the powers conferred on the Court by r 25 of the Uniform Civil Procedure Rules 2005 ("UCPR").

Background 2The appellant is a company incorporated in Switzerland carrying on business as an exporter of steel products. The financial records tendered before the primary judge indicate that it is a company of some substance. Its balance sheet for the year ended 30 December 2010 discloses current assets of CHF502,143,582 compared to current liabilities of CHF98,670,057. Its turnover for the year was around CHF2.5 billion whilst its profit before tax was CHF39,316,258. 3The respondent is a company incorporated in India and is the third largest manufacturer of secondary steel products in that country. Its shares are listed on the Bombay Stock Exchange and the National Stock Exchange of India. It has a market capitalisation of around $US2 billion. Bhushan Steel (Australia) Pty Ltd, a wholly owned subsidiary of the respondent, owned 78.6 percent of issued shares in a then Australian Securities Exchange listed coal and mineral exploration company, Bowen Energy Limited. 4Between 17 August 2004 and 9 March 2005, the appellant and the respondent entered into separate contracts by which the appellant agreed to supply hot rolled steel coils to the respondent. The contracts which are particularly relevant for the purpose of the present proceedings are contracts dated 16 December 2004, 3 February 2005 and 18 February 2005 respectively numbered 50002, 50487 and 50625 ("the third, fourth and fifth contracts") and the contract dated 9 March 2005, numbered 50754 ("the sixth contract"). 5The contracts relevantly were in common form. They obliged the appellant to deliver hot rolled steel coils of a particular standard (subject to certain tolerances). Payment was to be made through an irrevocable letter of credit in favour of the appellant open through a Swiss Bank, BNP Paribas (Suisse) SA. Payment was to be made within two days after the bank had confirmed receipt of the documents in full compliance with the credit terms. The contracts did not contain a choice of law clause. 6Steel was delivered and paid for under the third, fourth and fifth contracts. However, prior to the steel the subject of the sixth contract being delivered, the respondent sought to renegotiate the payment terms. The appellant declined to do so and the respondent refused to accept the steel. As a consequence, the appellant terminated the sixth contract on 29 June 2005 and sold the steel appropriated to the contract at a loss. The appellant also incurred additional storage fees in respect of the hot rolled steel coils. 7On or about 1 September 2005 the appellant commenced proceedings in Germany to recover its loss. The Local Court of Düsseldorf declined to hear the matter on the basis that it did not have jurisdiction. The Higher Regional Court affirmed the decision. 8On 26 October 2005 the respondent wrote to the appellant alleging that the steel supplied under the third, fourth and fifth contracts was defective and did not meet the required specifications. The appellant denied any liability for breach of contract. 9On 9 June 2006 the appellant brought proceedings in Geneva claiming damages for breach of the sixth contract. The appellant was successful in its claim both in the Geneva District Court, judgment being delivered on 18 June 2009, and on appeal, judgment being delivered on 15 January 2010. Judgment was delivered in the amount of $US1,795,830 plus interest at five percent from 25 October 2005, $US129,104.25 plus interest at five percent from 31 October 2005 and legal costs of CHF100,000. 10On 8 January 2007 the respondent commenced proceedings in the High Court of Delhi seeking damages for breach of the third, fourth and fifth contracts on the basis that the steel supplied under those contracts was defective. These proceedings have not been concluded. 11Although the question of defective steel did not directly arise in the Swiss proceedings, there was some reference to it. This appears in the following passages of the judgment of the Geneva Court of Appeal in the Swiss proceedings under the heading "Questions of Facts": "h) Between 5 and 14 February 2005, SEVERSTAL and BHUSHAN negotiated the price for a new order. SEVERSTAL made an offer to deliver 7000 to 9000 tonnes for the price of US $690 per metric tonne, whereas BHUSHAN was hoping for a price of US $670 per metric tonne. The parties eventually agreed to fix the price at US $685 per metric tonne. On 9 March 2005, SEVERSTAL posted order confirmation No. 50754 to BHUSHAN, confirming that it had sold it 7000 metric tonnes of steel coils for the price of US $685 per metric tonne - giving a total of US $4,795,000 - for direct exportation and consumption in India. The production month for the goods was April 2005 and the cut-off date for shipment was set for 15 June 2005. An irrevocable letter of credit was to be issued no later than 25 March 2005 through the bank BNP PARIBAS (SUISSE) SA, located in Geneva. A tolerance of around 10% was permitted, per item and in total, in relation to the price and the quantity. This order confirmation, like the previous ones, also specified that the time limit for making complaints was 30 days for visible defects and 60 days for hidden defects, from the date of the bill of lading. It was specified that complaints concerning the quality of the goods would not entitle the purchaser to refuse or delay payment of the invoices. This order confirmation, drafted on SEVERSTAL's letterhead, was not signed by hand by a representative of that company. Before countersigning it, BHUSHAN had changed the deadline for opening the letter of credit to 25 April 2005. i) The goods supplied under order confirmation No. 41387 were loaded - according to the bill of lading - on 28 February 2005. As for the goods supplied under order confirmations Nos. 50002, 50487 and 50625, the first consignment was loaded on 26 March 2005 and the other two on 29 May 2005. ... p) BHUSHAN informed MAHINDRA, in an e-mail dated 1 June 2005, that it had taken note that the goods specified in order confirmation No. 50754 were ready at the port. BHUSHAN had not been able to open the letter of credit on 25 April, as promised. This was because the steel price had fallen and, as a result, BHUSHAN's customers were refusing to pay the agreed price of US $685 because local steel suppliers were offering lower prices. BHUSHAN stated that it was suffering losses on its existing steel stocks and requested that the agreed price of US $685 be revised downwards. q) SEVERSTAL informed BHUSHAN, through a letter sent by its lawyer on 17 June 2005, that it had no intention of renegotiating the agreed price, and made a formal demand for BHUSHAN to open the letter of credit or pay the agreed price before 27 June 2005, so that SEVERSTAL could deliver the goods, failing which it intended to terminate the contract, resell the goods and bring an action for damages against BHUSHAN. ... u) BHUSHAN informed SEVERSTAL, in letters dated 26 October 2005, that some of the steel delivered under orders Nos. 50002, 50487 and 50625 was defective, attaching to its letters reports compiled by the SGS in India. v) In letters dated 11 November 2005, SEVERSTAL informed BHUSHAN that it was contesting its claims on the grounds that the SGS reports were concerned with cold-rolled steel coils, whereas the contracts related to hot-rolled steel coils. Furthermore, the contractual time limit for complaints regarding defects had not been respected. B. a) SEVERSTAL lodged a summons with the District Court on 9 June 2006 claiming the sum of US $1,795,830 from BHUSHAN, with interest at 5% from 25 October 2005 and also the sum of US $129,104.25 with interest at 5% from 31 August 2005. The first sum represents the difference between the price due from BHUSHAN according to the contract of 9 March 2005 and the sum obtained through the offsetting sales. The second sum corresponds to the additional storage fees that SEVERSTAL had to pay to INTERGATE AG due to BHUSHAN's failure to pay the sale price. b) On 8 January 2007, BHUSHAN brought an action against SEVERSTAL and MAHINDRA in the New Delhi High Court for the sum of US $3,390,916.710, indicating that this related to orders Nos. 50002, 50487 and 50625. c) Within these present proceedings, BHUSHAN submitted that the claim should be rejected." 12Notwithstanding this, the respondent placed no reliance on the defective steel in its defence to the Swiss proceedings. That appears from the summary of its submissions by the Geneva Court of Appeal: "BHUSHAN asserts that, according to a usage established between the parties, their intention was that they would be contractually bound only when both of them had signed the order confirmation by hand, such that the sale in issue was not valid. BHUSHAN had deferred the date for opening the letter of credit in relation to the confirmation in issue - initially scheduled for 25 March 2005 - to 25 April 2005, due to the fact that SEVERSTAL needed to find a solution to ensure that there were no defects in the goods to be supplied. According to BHUSHAN, SEVERSTAL had failed to sign the order confirmation of 9 March 2005 in order to avoid the risk that the purchaser would refuse to take delivery of the goods in the event of any defect. In any case, SEVERSTAL should have waited for the letter of credit to be opened before producing the goods, which would have enabled it to mitigate its harm. In its pleadings, BHUSHAN compiled a table apparently showing that SEVERSTAL had produced the steel under the previous orders on dates prior to the opening of the letter of credit. SEVERSTAL had demonstrated particular negligence with regard to safeguarding its own interests by producing the goods notwithstanding BHUSHAN's letter of 1 April 2005, the confirmation of the grievances contained therein SEVERSTAL's e-mail of 7 April 2005, the fact that the letter of credit had not been opened by the specified deadline (25 April) and the sharp fall in the price of steel." 13It should be noted that the parties to the proceedings agreed that Swiss law was the proper law of the contract, an agreement the Geneva Court of Appeal regarded as correct in law. This appears from the following passage of the judgment under the heading "Questions of Law": "2. The parties have argued their respective positions on the basis of Swiss law. However, in view of the international nature of the dispute, we should examine whether that law is in fact applicable. ... 2.2 In this particular case, the vendor's agent was dealing with the purchaser in India at the time that the contract in question was concluded, and there may therefore be grounds for considering whether art. 3, paragraph two of the Hague Convention of 15 June 1955 is applicable. However, the vendor maintained, in its claim to the District Court, that its habitual residence was in Switzerland at the time it received the order and that consequently - in accordance with art. 3, paragraph one of the Hague Convention of 15 June 1955 on the law applicable to the international sale of goods - Swiss law, including the United Nations Convention on Contracts for the International Sale of Goods (CISG) concluded in Vienna on 11 April 1980 was applicable. In its answer, the purchaser concurred with this solution and accepted the application of Swiss law. Subsequently, the vendor indicated, in its reply and in its final pleadings, that the parties had agreed to the application of Swiss law, as the respondent confirmed by continuing to apply it. Both parties also applied Swiss law in their proceedings with the Court of Appeal. Finally, from the start of the proceedings, they have been represented by legal counsel. It may therefore be accepted that the attitude of the litigants during the proceedings demonstrates that they were aware of the question of applicable law and had the intention to have their dispute resolved according to Swiss law. Therefore Swiss law is applicable in this case." 14The appellant unsuccessfully sought to enforce the judgment in the Netherlands and in Germany. It did not seek to enforce the judgment in India. Ultimately, the appellant sought to register its judgment in New South Wales. By Notice of Motion filed on 23 February 2011, the appellant sought orders restraining the respondent from disposing of its shares in Bhushan Steel (Australia) Pty Ltd up to a value of $2,448,712.10 ("the freezing order"). 15The judgment was registered and the freezing order was made ex parte. On 12 September 2011, Simpson J dismissed a motion to stay the execution of the Geneva Court of Appeal judgment which was registered on 3 March 2011 pursuant to the Foreign Judgments Act 1991 (Cth) and to set aside the freezing order: Severstal Export GmbH v Bhushan Steel Ltd [2011] NSWSC 1063. Her Honour noted that it was a significant point of the respondent's argument that the "Geneva proceeding" and the "Delhi proceeding" had a common substratum of fact. In rejecting that submission, she noted at par [34] that the "common substratum" lay in the identity of the parties to the Geneva litigation and the Delhi litigation and that, in each case, the issues concerned contracts for the sale of steel. She stated, "There the commonality ends". 16The conclusion reached by Simpson J reflected submissions made to her on behalf of the appellant. However, the appellant took a somewhat different approach in its defence in the Indian proceedings. This appears from the following paragraphs of its amended defence: "1A. That the aforesaid suit is not maintainable as the defendant no.1 had filed claim against the plaintiff in the Court of Geneva (Switzerland) bearing no. C/13920/2006-8 on June 9, 2006 regarding the contract between the parties which is also subject matter of this suit. The plaintiff was served with the summon of the said case on September 14, 2006 from the Geneva Court and present suit has been filed about 5 (Five) months thereafter and same was not disclosed in the present suit. The Geneva Court has passed judgment on June 18, 2009 in the aforesaid case directing the plaintiff to pay as follows:- i) USD 1,795,830 with 5% interest per year from the 25 October, 2005. ii) USD 129,104.25 with 5% interest per year from the 31 October, 2005. iii) The cost of proceedings which shall include an amount of CHF 100,000 as a participation in the legal fees of the Severstal Export GMBH i.e. the applicant / defendant no. 1. After passing of the aforesaid judgement by the Geneva Court, the present suit can be decided in terms of said judgement. The certified copy of judgement dated June 18, 2009 passed by the Geneva Court along with English Translation are placed on record alongwith Amendment Application and marked as Annexure 'A' & 'B' respectively. 2. That the aforesaid suit is not maintainable as the plaintiff has submitted to the Jurisdiction of the Court of Geneva and has also admitted that the adjudication of disputes between the parties shall be governed by the United Nations Convention on the International sales of goods of 11 April 1980 (CISG Convention). The English translated copies of Claim (Request for Payment) in the Court of Geneva (Switzerland) bearing no. C/13920/2006 on June 9, 2006 for the damage of USD 1'924'934.25 & interest Statement of Defence therein are being placed on record. 3. That the aforesaid suit is not maintainable as this Hon'ble court has no territorial jurisdiction to entertain, try and adjudicate the aforementioned suit as the answering defendant is not having any place of business or office in India. 4. That the aforesaid suit is not maintainable as the plaintiff has suppressed and concealed vital material facts from this Hon'ble Court about the claim preferred by the defendant no. 1 with regard to contract between the parties in Geneva Court. It will be relevant to mention here that the defendant no.1 has filed a case against the plaintiff in the Court of Geneva (Switzerland) bearing no. C/13920/2006 on June 9, 2006 regarding the contract between the parties which are also subject matter of this suit. The plaintiff was served with the summon of the said case in September 14, 2006 from the Geneva Court and present suit has been filed about five months thereafter and same was not disclosed in the present suit. ... 6. That the suit is not maintainable as there cannot be two parallel proceedings between the same parties and regarding contracts having same subject matter. The present suit is liable to be dismissed/rejected/stayed as it would result in multiplicity of proceedings and conflicting decisions. 7. That the suit is not maintainable as the same is barred under Indian laws as the plaintiff has itself chosen foreign law to govern the contract between the parties." 17On 3 December 2010 the judge managing the proceedings in the High Court of Delhi framed as two of the issues for the Court's determination: (i) whether the Court had territorial jurisdiction to entertain the claim, and (ii) whether the suit was barred on account of the judgment and decree of the Geneva Court. 18The respondent applied for security in the Indian proceedings for any judgment it may obtain. The appellant had refused to provide such security. 19Following the dismissal of its motion by Simpson J on 12 September 2011, the respondent's solicitors delivered cheques to the appellant's solicitors in satisfaction of the Swiss judgment on 13 October 2011. The respondent immediately sought and obtained a freezing order under UCPR r 25.14 restraining transmission of the cheques or the proceeds thereof out of Australia.

The relevant Rule 20Prior to dealing with the reasoning of the primary judge and the parties' submissions, it is convenient to set out the relevant portions of UCPR r 25: "25.11(1) The court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied. (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets. ... 25.14(1) This rule applies if: (a) judgment has been given in favour of an applicant by: (i) the court, or (ii) in the case of a judgment to which subrule (2) applies - another court, or (b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in: (i) the court, or (ii) in the case of a cause of action to which subrule (3) applies - another court. (2) This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the court. (3) This subrule applies to a cause of action if: (a) there is a sufficient prospect that the other court will give judgment in favour of the applicant, and (b) there is a sufficient prospect that the judgment will be registered in or enforced by the court. (4) The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur: (a) the judgment debtor, prospective judgment debtor or another person absconds, (b) the assets of the judgment debtor, prospective judgment debtor or another person are: (i) removed from Australia or from a place inside or outside Australia, or (ii) disposed of, dealt with or diminished in value. (5) The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the court is satisfied, having regard to all the circumstances, that: (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because: (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or (b) a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment. (6) Nothing in this rule affects the power of the court to make a freezing order or ancillary order if the court considers it is in the interests of justice to do so."

The reasoning of the primary judge 21The primary judge concluded that the respondent had a good arguable case in the Indian proceedings within the meaning of UCPR r 25.14(1)(b)(ii). He also concluded that there was a sufficient prospect that the High Court of Delhi would give judgment in favour of the respondent and the judgment would be enforced by this Court, such that the requirements of r 25.14(3) were satisfied. These conclusions were not disputed on appeal. 22The primary judge also concluded that if the cheques or the proceeds thereof were removed from Australia, there was a danger that any judgment obtained in the Indian proceedings would be unsatisfied. 23In reaching that conclusion the primary judge recognised that the purpose of the rule was to prevent an abuse or frustration of the Court's process: judgment at [152]. He also recognised that mere assertions of a danger that this would occur was insufficient to ground the jurisdiction to make an order. He held, following Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; (2010) 80 ATR 449, that the plaintiff had to establish a significant likelihood of risk which in the circumstances justified an order. 24The primary judge made reference to the affidavit of Mr Beat Mumenthaler, a Swiss lawyer representing the appellant. His evidence was that one of the grounds for refusing to enforce a foreign judgment in Switzerland was that the proceedings the subject of the foreign judgment involved the same parties and the same subject matter as proceedings first brought in Switzerland and adjudicated in Switzerland: judgment at [166] referring to Article 27 of the Swiss Federal Code on Private International Law. 25The primary judge also referred to the evidence of Mr Manish Ranjan, the Deputy Manager - Legal of the respondent. In his affidavit evidence, Mr Ranjan referred to the fact that the appellant had refused to provide security for any judgment in the Indian proceedings and that it did not have any assets in India: judgment at [169]. His Honour also pointed out that Mr Ranjan deposed to the fact that the respondent would instruct its solicitors to execute any judgment on the appellant's assets in Australia, and further, that there was no treaty for the enforcement of judgments between Switzerland and India. The primary judge also referred to Mr Ranjan's evidence of his concern that there would be considerable uncertainty surrounding the respondent's ability to enforce any judgment it obtained in the Indian proceedings: judgment at [169]. 26After referring to what the primary judge described as the hard fought feud between the parties, he stated that he was entitled to infer that each party would take every legitimate course open to it in the litigation. In that context, the primary judge reached the following conclusions: "[173] In Switzerland it appears that a ground for a Swiss Court to refuse to recognise a foreign judgment is that it (the foreign proceeding) was 'a proceeding involving the same parties, the same subject matter was first brought in Switzerland or adjudicated in Switzerland'. Severstal in its defence in India argues that the proceedings are not maintainable there because they are indeed 'between the same parties, regarding contracts having the same subject matter'. Arguably Severstal would argue, consistent with the stance in India that in the event that Bhushan sought to enforce a judgment in Switzerland the matter had already been determined. It would, I can infer, invoke the operation of article 27. I am entitled to infer that it would indeed pursue that strategy consistent with its stance in India especially when there is no suggestion it would not take that course. This in my opinion is open not as mere speculation but a reasonable inference. Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222 et seq, per Mahoney JA. ... [175] Unless restrained, in my opinion on the evidence, it is reasonably open to infer that Severstal would remove the asset from this jurisdiction. There is clearly a real risk that it will do so. It has no reason to keep the asset here. By that I do not mean that it would do anything that was illegitimate, quite the contrary, but it is in no mood to cooperate with Bhushan for obvious reasons. An intention legitimately to remove assets from a jurisdiction is no bar to relief. Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 53 per Young CJ. In particular I have had regard to the way Severstal has conducted this litigation all over the world. It has been relentless, single minded and unforgiving. The same can be said of Bhushan. [176] In this case it is clear that a judgment in Bhushan's favour cannot be enforced in India but if judgment is obtained there are sufficient prospects of enforcement in Australia. Australia is a perfectly appropriate jurisdiction for that purpose and Bhushan is entitled to exercise its freedom of choice in that regard. I fail to see what real prejudice flows to Severstal if a freezing order were to be continued. Whilst there are competing estimates about how much longer the Indian proceedings may take, it is reasonable to assume that it is likely they will conclude sometime in the course of this year (at first instance at least). Severstal would not be prevented if there was a material change in circumstances from applying to have the order varied or dissolved." 27In these circumstances the primary judge made the orders the subject of this appeal.

The grounds of appeal 28The appellant relied on the following grounds of appeal: "1 The primary judge erred in granting a freezing order pursuant to UCPR 25.14 in circumstances where his Honour did not determine that there was a danger that a prospective judgment in favour of the respondent in Proceedings No. CS (OS) 297/2007 in Delhi, India will be wholly or partly unsatisfied. 2 Alternatively to ground 1 above, the primary judge erred in granting a freezing order pursuant to UCPR 25.14 by determining that there was a danger that a prospective judgment in favour of the respondent in Proceedings No. CS (OS) 297/2007 in Delhi, India will be wholly or partly unsatisfied." 29It should be noted that there was no challenge to the exercise by the trial judge of his residual discretion to make an order. Rather, what was challenged was a failure to consider whether the requirements of UCPR r 25.14(4) were made out, or alternatively, to the extent the primary judge did consider that issue, he erred in determining that there was a danger that a judgment in the Indian proceedings would remain unsatisfied.

A The appellant 30The appellant emphasised that the onus of proving a danger that a prospective judgment would be unsatisfied by reason of the matters referred to in r 25.14(4) rests on the applicant seeking the order. It emphasised that it was necessary to establish by evidence and not assertion that there was a real danger of the judgment not being satisfied by reason of those matters. It emphasised that r 25.14(4) must be read in conjunction with r 25.11, which states that the object of the rule is to prevent the frustration or inhibition of the court's process. 31The appellant submitted that in the case of a foreign defendant, it is not enough to prove that a company is incorporated overseas coupled with an allegation that there are no realisable assets in Australia other than those it is sought to enjoin. It submitted that there must be a real risk demonstrated by solid evidence that the defendant is likely to default. 32In relation to the first ground of appeal, the appellant submitted without elaboration that the primary judge did not separately determine that he was satisfied, having regard to all the circumstances, that a prospective judgment of the High Court of Delhi would be wholly or partly unsatisfied. 33Alternatively, the appellant submitted there was no relevant danger. It pointed to the fact that the unchallenged financial position of the appellant demonstrated that it had the capacity to meet the judgment. It submitted that it was inherently improbable that a company of its capacity and standing would decline to meet a judgment obtained against it. It submitted that no inference could be drawn from its attempt to enforce the Swiss judgment in places other than India or its refusal to provide security for a prospective judgment in the Indian proceedings. It pointed to the fact that it was never put to Mr Withold Skrotzki, the Manager of the appellant, either in these proceedings or in the previous proceedings before Simpson J, that the appellant would not meet any adverse judgment. The transcript of the proceedings before Simpson J was in evidence in these proceedings. It submitted that nothing could be inferred from the remitter of the proceeds of the cheques to Switzerland as that was the principal place of business of the appellant which did not carry on business in Australia. 34In relation to the possibility that a Swiss Court would not enforce any judgment obtained in the Indian proceedings, the appellant submitted first that it was based on an assumption that the appellant would not meet such a judgment voluntarily. It said there was no basis for this assumption. Second, it submitted that it was not put to Mr Mumenthaler in cross-examination that an objection under Article 27 of the Swiss Federal Code on Private International Law would be successful. Third, it submitted that there was no evidence to suggest that a Swiss Court would reach such a conclusion if the argument was rejected by the High Court of Delhi. In addition, it pointed to the conclusion reached by Simpson J that there was no common substratum of fact between the Swiss proceedings and the Indian proceedings. 35At the hearing, senior counsel for the appellant emphasised the fact that the primary judge had reached no conclusion in relation to the prospects of success of the argument that a judgment in the Indian proceedings could not be enforced in Switzerland because of the prior proceedings which had taken place there. He submitted that had the primary judge considered the issue, he would have come to the conclusion that there was no merit in the argument. In this respect senior counsel pointed to the conclusions reached by Simpson J. 36Senior counsel for the appellant submitted that the primary judge was not entitled to infer a real danger existed that the prospective Indian judgment would not be satisfied, simply by reason of the fact that it had been pleaded in the Indian proceedings that the suit was not maintainable because of the prior Swiss proceedings: see par [16] above. He submitted the primary judge should have inferred that the defence was meritless in India or based on some "quirk" of Indian law. He submitted that in any event the question of enforcement in Switzerland only arose if the appellant declined to satisfy any Indian judgment. He submitted there was no evidence that this was likely to occur. 37Senior counsel for the appellant accepted that there was no basis for this Court to interfere if there was evidence from which it was open to the primary judge to form a view that there was a danger the prospective Indian judgment would remain unsatisfied.

B The respondent 38The respondent submitted that the conclusion of the primary judge was justified having regard to a number of unchallenged factual findings. First, although the Swiss proceedings referred to the defective steel, the issue of liability for such defects was not determined in the Swiss proceedings. Second, the respondent had a good arguable case in the Indian proceedings. Third, the appellant had no assets in India but had assets in Switzerland. Fourth, there was no treaty concerning the enforcement of judgments between India and Switzerland, and further, Article 27 provided the criteria on which a Swiss Court may decline to enforce a foreign judgment in that country. Fifth, the appellant was asserting in the Indian proceedings that the issue in those proceedings was between the same parties regarding contracts having the same subject matter as the Swiss proceedings. 39The respondent also submitted that the primary judge was correct in concluding that there was no principle requiring the respondent to enforce any judgment it may obtain in the Indian proceedings in Switzerland merely because the appellant had assets in that country. 40So far as ground 1 of the Notice of Appeal was concerned, the respondent pointed to the fact that the primary judge correctly identified the issue for determination in par [162] of his judgment and concluded that the respondent would seek enforcement of any judgment in the Indian proceedings in Australia. It submitted that in these circumstances the primary judge gave consideration to the question of whether any judgment obtained would remain unsatisfied. 41So far as ground 2 was concerned, the respondent submitted that the most likely inference in all the circumstances was that the appellant would default in the payment of a judgment of the High Court of Delhi. It submitted that it was open to the appellant to adduce evidence that it would meet any such judgment and it did not do so. It also submitted that the appellant adduced no evidence to the effect that it would not resist enforcement of the judgment in Switzerland. In these circumstances it submitted the primary judge was entitled to infer there was a danger that any judgment obtained in the Indian proceedings would be unsatisfied if the assets were removed from Australia. 42The respondent submitted that the primary judge was entitled to draw this inference having regard to the fact that the appellant brought proceedings in Switzerland where the respondent had no assets, that the appellant never sought to enforce its judgment in India, and the conflicting positions that the appellant adopted by asserting in Australia there was no common substratum of facts between the Swiss and the Indian proceedings, whilst taking the contrary position in India. 43At the hearing, senior counsel for the respondent submitted that the relevant question was not whether there was a danger that the Indian judgment would not be satisfied. Instead, the relevant question was whether there was a danger that a New South Wales judgment obtained by registration of the foreign judgment, or (as in this case) obtained in proceedings to enforce the foreign judgment, would not be satisfied. He submitted that this flowed from r 25.11, which states that the purpose of the rule is to prevent interference with the court's processes. Although he accepted that the fact that the foreign judgment may be enforceable elsewhere is relevant to the question of discretion, he submitted that the foreign judgment is not the judgment referred to in r 25.14(4). He submitted that the general power to grant freezing orders is contained in r 25.11, while r 25.14 simply sets out the steps the court has to take in considering whether it is appropriate to exercise the jurisdiction. He submitted that if that approach was correct, there was plainly a danger that the prospective New South Wales judgment would not be enforced if the cheques or the proceeds were removed from Australia. 44Senior counsel for the respondent accepted that the primary judge did not decide the question on this basis and that if his submission was correct, it would be necessary to re-exercise the discretion. He pointed to the fact that the submission had been made in the Court below and submitted that no notice of contention was necessary. 45On the question of the danger of the prospective Indian judgment not being enforceable by reason of the removal of the cheques or proceeds from Australia, senior counsel for the respondent submitted that although the danger had to be more than theoretical, it was not an onerous test. He submitted that it was not necessary to decide that the judgment would not be enforced in Switzerland, but merely that there was a risk that this might occur. He pointed to the failure by the appellant to give any undertaking that the judgment would be honoured. He also pointed to the fact that the appellant had declined to provide security in the Indian proceedings. Finally, he relied on the fact that the appellant had pleaded in the Indian proceedings that the contract was between the same parties and arose out of the same subject matter as was litigated in the Swiss proceedings.

A The construction of the Rule 46It is convenient to deal first with the respondent's contention that the relevant judgment to be considered for the purpose of r 25.14(4) is the New South Wales judgment obtained upon registration or proceedings for the enforcement of a foreign judgment, rather than the foreign judgment itself. 47As I indicated, the primary judge proceeded on the basis that the relevant judgment to be considered for the purpose of r 25.14(4) was the prospective Indian judgment. It is correct that the respondent orally submitted to the primary judge that the prospective New South Wales judgment was the one that should be considered for the purpose of r 25.14(4), in contrast to its written submissions which stated there was a danger "that the Indian judgment will go partly or wholly unsatisfied". However, no Notice of Contention was filed and no written submission was addressed to that issue. No explanation was given for the failure to either file a Notice of Contention or address written submissions on the matter. 48Generally speaking it would be appropriate in these circumstances to decline to entertain the submission. However in any event, I have reached the conclusion that the submission is not correct and, even if it was, in the circumstances of the present case it would not have had a material impact on the outcome of the proceedings. 49UCPR r 25.14(1)(a) provides that the rule applies in two circumstances. First, where a judgment has been given by the court (r 25.14(1)(a)(i)), and second, where r 25.14(2) applies to a judgment given by another court (r 25.14(1)(a)(ii)). Another court is defined by r 25.10 to include a court outside New South Wales, whether inside or outside Australia. Judgment is defined in s 3 of the Civil Procedure Act 2005 to include any order for the payment of money. 50It follows that the rule on its terms could apply to a foreign judgment. The jurisdictional precondition contained in r 25.14(2) is that there is a sufficient prospect that the judgment will be registered or enforced by the court. 51A similar approach is adopted in circumstances where judgment has not been delivered but where the applicant has a good arguable case on an accrued or prospective cause of action. Rule 25.14(1)(b)(i) states the rule applies where such a cause of action is justiciable in the court, whilst r 25.14(1)(b)(ii) provides it can apply in respect of a cause of action justiciable in another court. Having regard to the definition of another court in r 25.10, this could include a cause of action justiciable in a foreign court. The preconditions for the application of the rule in these circumstances are contained in r 25.14(3); namely, that there be a sufficient prospect that the other court will give a favourable judgment, and second, that the judgment will be registered or enforced in the court. 52In these circumstances, it seems relatively clear in my opinion that the judgment or prospective judgment referred to in the opening words of r 25.14(4), in the case of a judgment or prospective judgment to which r 25.14(1)(a)(i) or r 25.14(1)(b)(i) applies, is a judgment of the court. However, where r 25.14(1)(a)(ii) or r 25.14(1)(b)(ii) applies, the judgment is the judgment of the other court as defined. Although the application of the rule in the latter class of case is subject to the preconditions in r 25.14(2) and r 25.14(3) respectively, that does not mean that r 25.14(4) applies to the local judgment obtained upon registration or enforcement of the judgment of that court. Such a construction will give a different meaning to the word judgment in r 25.14(4), as compared to that contained in the preceding rules. There is no reason to conclude that this was the intention of those who framed the rules. 53It does not seem to me that r 25.11 requires that a contrary conclusion be reached. It is true that the rule makes it clear that the power to make a freezing order is to prevent the frustration or inhibition of the court's processes. However, the construction which I consider preferable will not defeat that purpose. If the conditions of jurisdiction contained in r 25.14(2) and r 25.14(3) are made out and there is a danger that a foreign judgment or prospective foreign judgment will not be enforced because of the matters referred to in r 25.14(4)(a) or (b), then the Court can protect its registration and enforcement process by making a freezing order. On the other hand, if there is no risk to the enforcement of the foreign judgment or prospective judgment, there is no need for the Court to make any order to protect its process. 54Further, even if the contrary construction was correct, it would not be appropriate in my opinion to grant a freezing order against the foreign corporation in respect of proceedings which had no connection with Australia in circumstances where the foreign judgment was capable of enforcement in the foreign corporation's place of residence. To make such a freezing order in these circumstances would be an unjustifiable use of the powers of the Court and an unwarranted interference in foreign proceedings. The only question then on either construction is whether there is a danger that the prospective judgment in the Indian proceedings would not be enforced if the cheques or the proceeds were remitted from Australia: see Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 518-520 and the cases cited therein.

B Ground 1 of the grounds of appeal 55This ground can be dealt with shortly. In par [162] of his judgment the primary judge sets out the precondition to the making of an order under r 25.14(4). In par [173] of his judgment to which I have referred above, he inferred that the appellant would seek to resist enforcement of the judgment in Switzerland by invoking Article 27. Although he does not expressly state this to be the case, it is relevantly clear that he considered there was a danger the judgment would not be enforced in Switzerland and could not be enforced elsewhere. In that context he reached the conclusions in pars [175] and [176] of his judgment. In essence, the primary judge concluded that the danger referred to in r 25.14(4) existed, having regard to the potential difficulties in enforcing the Indian judgment in Switzerland if the assets were removed from Australia where judgment could be enforced. 56It follows that this ground of appeal is not made out.

C Ground 2 of the grounds of appeal 57In considering this ground it is important to bear in mind that a freezing order is an exceptional remedy and one that should not be granted lightly: Frigo v Culhaci [1998] NSWCA 88. In that case, the Court (Mason P, Sheller JA and Sheppard AJA) made the following remarks: A plaintiff must establish, by evidence and not assertion, that there is a real danger that, by reason of the defendant absconding or removing assets out of the jurisdiction or disposing of assets within the jurisdiction, the plaintiff will not be able to have the judgment satisfied if successful in the proceedings. There has been much debate as to the precise degree of risk which must be shown: see generally Patterson. What is clear is that mere assertions that the defendant is likely to put assets beyond the plaintiffs reach will not be enough: Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG [1984] 1 All ER 398; Patterson." 58Earlier, in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, Gleeson CJ rejected the submission that an applicant for a freezing order had to establish on the balance of probabilities that by reason of the assets being removed, the applicant if successful would be unable to have the judgment satisfied. His Honour made the following comments (at 325): "The appellant submitted that the true test to be applied is whether the plaintiff has established the likelihood in question upon the balance of probabilities. This submission must fail. First, it is open to the theoretical objection concerning the conceptual difficulties involved in applying the standard of balance of probabilities to future, as distinct from past, events referred to by Lord Reid in Davies v Taylor [1974] AC 207 at 212. Secondly, it is too inflexible. It is not difficult to imagine situations in which justice and equity would require the granting of an injunction to prevent dissipation of assets pending the hearing of an action even though the risk of such dissipation may be assessed as being somewhat less probable than not. Thirdly, the test has been considered and rejected in England, for reasons which are convincing. It was specifically rejected by Mustill J in Third Chandris Shipping Corporation v Unimarine SA (at 652) and, at least by implication, by the Court of Appeal in Ninemia Maritime Corporation v Trave." 59Although these remarks were made in cases involving the Court's inherent power to make orders to protect abuse of its process, they are equally applicable to cases where UCPR r 25 is invoked: Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249; (2008) 163 LGERA 83 at [43]. Further, a similar approach has been adopted by both this Court at first instance and the Federal Court in dealing with r 25.14 and its Federal equivalent: Finn v Carelli [2007] NSWSC 261 at [4]-[5]; Deputy Commissioner of Taxation v Hua Wang Bank Berhad supra. In the latter case Kenny J summarised the position as follows: "[9] Depending on the circumstances, the interests of justice may support the grant of a freezing order to prevent the dissipation of assets pending the hearing of an action even though the risk of dissipation is less probable than not: Patterson at 325 per Gleeson CJ; P Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders, 2nd ed, LexisNexis Butterworths, Australia, 2008, p 209 [6.17] (Biscoe), citing Patterson, Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 54 (Glenwood), and Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226 at [14] per Kiefel J referring to Victoria University of Technology v Wilson [2003] VSC 299 at [36]. As Redlich J noted in the last-mentioned case (at [36]), '[w]hat must be established is a sufficient likelihood of risk which in the circumstances of a particular case justifies an asset preservation order'. ... [12] The fact that assets within the jurisdiction are moveable, and that the respondent is incorporated outside the jurisdiction is not enough to warrant an inferential finding of danger of dissipation. Rather, there must be facts from which, to quote Lawton LJ in Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645 at 671; [1979] 2 All ER 972 at 987 (Chandris) 'a prudent, sensible commercial' person can 'properly infer a danger of default if assets are removed from the jurisdiction'. In this connection, Lawton LJ also said (at QB 672; All ER 987): ' ... In my judgment an affidavit in support of a Mareva injunction should give enough particulars of the plaintiff's case to enable the court to assess its strength and should set out what inquiries have been made about the defendant's business and what information has been revealed, including that relating to its size, origins, business domicile, the location of its known assets and the circumstances in which the dispute has arisen. These facts should enable a commercial judge to infer whether there is likely to be any real risk of default. Default is most unlikely if the defendant is a long established, well known foreign corporation or is known to have substantial assets in countries where English judgments can easily be enforced either under the Foreign Judgments (Reciprocal Enforcement) Act 1933 or otherwise. But if nothing can be found about the defendant, that in itself may be enough to justify a Mareva injunction.' See also Chandris at QB 669; All ER 985 per Lord Denning MR, Raukura Moana Fisheries Ltd v Ship 'Irina Zharkikh [2001] 2 NZLR 801 at [122] per Young J, Hadid v Lenfest Communications Inc (1996) 67 FCR 446 at 449 per Lehane J, and Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 518; 155 ALR 478 at 481 (Reches) per Lehane J. In Reches Lehane J declined to grant a Mareva injunction where the respondent, though a foreign corporation that would remove or deplete its sole asset in Australian in the ordinary course of business, was 'a major and profitable corporation with very substantial assets'; there was nothing to suggest that the respondent was likely to default; and the respondent resided and principally carried on business in a jurisdiction where enforcement was possible under a reciprocal regime for the registration of judgments." 60In these circumstances, the critical issue is whether there was evidence on which the primary judge could conclude, consistent with the principles outlined above, that there was a danger of the prospective Indian judgment remaining unsatisfied if the cheques or the proceeds thereof were removed from Australia. As I indicated earlier at par [37], senior counsel for the appellant accepted that if there was evidence from which it was open to the primary judge to form such a view, then there was no basis to interfere with the judgment. 61A number of matters raised by the respondent in support of the conclusion of the primary judge seem to me, whether taken alone or in conjunction with each other, incapable of giving rise to the conclusion that such a danger existed. The fact that the appellant brought its proceedings in Switzerland where the respondent had no assets does not seem to me to be material. The parties conceded (in the opinion of the Geneva Court of Appeal correctly) that the governing law of the contract was Swiss law. Further, payment was to be made in Switzerland. In these circumstances Switzerland in my opinion was an appropriate forum. Second, even if it could be inferred that the appellant did not seek to enforce its judgment in India because it was concerned that enforcement might be resisted on the grounds that the respondent had a cross-claim or that the proceeds would be held as security for a judgment in the defended Indian proceedings, that does not lead to the conclusion that if judgment was in fact given against the appellant it would not be satisfied. Similarly, the fact that the appellant has declined to provide security in respect of a disputed claim does not lead to the conclusion that any judgment ultimately given in respect of that claim would not be honoured. This is particularly so having regard to the significant financial resources of the appellant. 62There remains the issue of enforcement in Switzerland. There are two questions involved in determining whether Article 27 of the Swiss Federal Code on Private International Law acts as a barrier to enforcement of the prospective Indian judgment in Switzerland, such that there was a danger that if the cheques or proceeds thereof were removed from Australia the prospective Indian judgment would not be satisfied. First, was the primary judge entitled to be satisfied that there was a danger the appellant would resist the enforcement of any judgment obtained in the Indian proceedings in reliance on Article 27? Second, could the judge be satisfied that there was a danger that Article 27 could be relied upon to resist enforcement? 63In my opinion the primary judge was entitled to infer that there was a danger that the appellant would resist enforcement of an Indian judgment in Switzerland in reliance on Article 27. It has effectively pleaded in the Indian proceedings that the claim is governed by Swiss law, that the High Court of Delhi has no jurisdiction to determine the matter and that the judgment of the Swiss Court effectively barred the Indian proceedings. 64It was within the power of the appellant to adduce evidence that it would not raise Article 27 in answer to enforcement in Switzerland if Article 27 was in fact available to resist the claim. Further, the conflicting position as to the relationship of the two claims in the Indian proceedings and the position taken in relation to that matter before Simpson J, does tend to suggest that the appellant is prepared to take all steps legitimately open to it to resist the respondent's claim. In those circumstances, the primary judge was entitled to infer that there was a danger that the appellant would seek to invoke Article 27 in Switzerland to resist enforcement of any judgment obtained against it in the Indian proceedings. 65The second question is more difficult. There is no direct evidence that Article 27 would operate to bar enforcement in Switzerland. As a matter of Australian law, the failure to raise liability for damages for a breach of another contract as a defence or cross-claim to a claim for breach of contract would not give rise to an estoppel of the nature of that described in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. 66In the absence of evidence of foreign law, it is generally presumed that foreign law is the same as the law of the forum. However that principle has limited use in the case of complex and technical issues including procedural law: Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492; Boele v Norsemeter Holdings AS [2002] NSWCA 363 at [40]. 67In Damberg supra, the issue was whether in the absence of evidence it could be assumed that the law in relation to the evasion or avoidance of capital gains tax is the same in Germany as in Australia. The Court held that it could not be assumed. After extensively reviewing the authorities Heydon JA, with whom Spigelman CJ and Sheller JA agreed, made the following remarks: "[162] To state exhaustively when a court will not assume that the unproved provisions of foreign law are identical with those of the lex fori would be a difficult task. It is not necessary to perform it in this case. The issue in this case is whether it should be assumed that German law in relation to the avoidance or evasion of capital gains tax is the same as Australian law. In my opinion it should not. It is to be noted that the relevant law, on the contention of the children, must combine many characteristics which have pointed against the making of such an assumption in past cases. German law on the point must be statutory. German law is not a common law-based system. According to the children, the conduct of the husband was criminal and fraudulent: whether it was criminal depends on the terms of legislation, and whether any fraud had relevant consequences depends on the terms of the legislation also. There is a risk that there may be special machinery and highly individual provisions in German law as there are in Australian tax law: indeed the only evidence of German law, from Mr Stiegler, suggests that it is quite different from Australian law. Taxation law cannot be assumed to be a field resting on great and broad principles likely to be part of any given legal system." 68Even if it could be assumed that what has been described as cause of action estoppel rests on some great or broad principle likely to be the part of any given legal system, it would not be appropriate to assume that a statutory provision of a civil law country was embodying such a principle including its limitations. In these circumstances, I do not think that it could be assumed that an attempt to resist enforcement based on Article 27 would fail because no res judicata, issue estoppel or cause of action estoppel would have arisen under the law of Australia. 69That leaves the question of whether there was evidence from which the primary judge could be satisfied that there was a danger that a prospective Indian judgment would not be satisfied if the proceeds of the cheques were remitted to Switzerland. Although the matter is finely balanced, in my opinion, there was evidence from which the primary judge could reach that degree of satisfaction. The defence filed in India was verified. The affidavit in support of the application to amend the defence to include a claim that the proceedings were barred as a result of the Swiss proceedings deposed that "The legal averments of the application is based on advice received bonafide from the counsel and believed to be true". It seems to be asserted in the Indian proceedings that the suit is not maintainable as it would be barred by res judicata and s 11 of the CPC (presumably the Code of Civil Procedure 1908 (India)), thus asserting that the suit was barred as a result of the law of India. However, there is nothing to suggest that the appellant would not take the same point in enforcement proceedings in Switzerland, particularly when it is asserted that Swiss law governed the contract. There is no evidence as to how a Swiss Court would apply Article 27 in such circumstances. However, in the context of that Article and the verified pleadings filed in the Indian proceedings it does not seem to me that it is open to conclude that such a position would not be arguable. 70In these circumstances, it was open to the primary judge to infer that it was arguable that enforcement of the Indian judgment could be successfully resisted in Switzerland and, therefore, there was a danger that the prospective Indian judgment could not be enforced. It follows that it could not be said that the primary judge fell into error. It may be that minds might differ as to whether it was appropriate in the circumstances of the present case to make the orders the subject of the appeal. However, it was not erroneous for the primary judge to do so. 71I will add this. No challenge was made to the exercise of the residual discretion of the trial judge. However, it must be emphasised that freezing orders of this nature should not be granted lightly. In the present case, if the contracts were governed by the law of Switzerland and if Swiss law required that the claims of the appellant and the respondent be heard in the same proceedings, then a court in this jurisdiction should be reluctant to grant an injunction which in effect would circumvent these requirements. However, these issues were not explored in any detail in the present case either at first instance or on appeal and in those circumstances it is not appropriate to take the matter further.

Conclusion 72The appeal should be dismissed with costs. 73BEAZLEY P: I agree with Bathurst CJ. 74BARRETT JA: For the reasons stated by the Chief Justice, this appeal should be dismissed with costs.

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