Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2010] FCA 312 | Case summary

REASONS FOR JUDGMENT 1 The land to which these proceedings relate is situated in Dubai in the United Arab Emirates (UAE). It is said to form part of a land development site there known as "The Dubai Waterfront", as a part known as "Plot D17" or at least to comprise the land on which the land known as Plot D17 is located. 2 In ways more particularly described in the statement of claim, the First and Second Applicants (the Sunland parties) allege that, in the course of 2007, the Third Respondent, Mr Reed, a director of each of the First Respondent, Prudentia Investments Pty Ltd (Prudentia) and the Second Respondent, Hanley Investments Pty Ltd (Hanley) and the Fourth Respondent, Mr Joyce, the managing director of a Dubai incorporated company, Dubai Waterfront LLC, either as principal or as a "party involved", made various representations to them (particularly to Mr Brown, the then Chief Operating Officer of the Dubai Branch of Sunland Group Limited, of which Sunland Waterfront (BVI) Ltd is a wholly owned subsidiary) concerning Plot D17 (or the land on which Plot D17 was located). In essence, those representations relate to either Mr Reed or Prudentia having a right to acquire Plot D17 or the land on which Plot D17 was located. 3 In reliance on the representations, it is alleged that, on 19 September 2007, Sunland Waterfront (BVI) entered into an agreement with Prudentia which materially provided for the payment of a "consultancy fee" of AED 44 million in consideration for which Prudentia agreed to transfer its right to negotiate and enter into a plot sale and purchase agreement with Dubai Waterfront LLC for the acquisition of Plot D17. Later, following a decision on the part of Prudentia to incorporate a subsidiary, Hanley "as part of expanding its business into Asia", Sunland Waterfront (BVI) came to discharge its agreement with Prudentia. In lieu thereof, but also in reliance on the alleged representations, on 30 September 2007, Sunland Waterfront (BVI) signed a sale and purchase agreement with Dubai Waterfront for the purchase by Sunland Waterfront (BVI) of Plot D17 for a price of AED120 sq/ft. Further, the Sunland parties authorised the release on 1 October 2007 of a cheque payable to Hanley in the sum of AED44,105,780, which Hanley thereafter negotiated to its credit. Mr Reed is alleged to have been an agent of Hanley seized with knowledge of the representations and their falsity. 4 The alleged representations are said to be false in that: (a) Neither Mr Reed nor Prudentia had a right to acquire Plot D17 or the land on which Plot D17 was located; (b) Dubai Waterfront LLC could (without the agreement of Mr Reed or Prudentia or either of them) sell Plot D17 or the land on which Plot D17 was located, and the right to develop Plot D17, to Sunland Group, or any other person; and (c) It was not necessary for Sunland Group to negotiate with or make a contract with either Mr Reed or Prudentia on order for Sunland Group to purchase Plot D17 or the land on which Plot D17 was located, or to acquire rights in connection with the development of Plot D17. 5 In these circumstances, the Sunland parties claim damages either on the basis of an alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) or of the tort of deceit. Reliance is also placed on the "party involved" provision, s 79 of the Trade Practices Act. Jurisdiction is alleged to be attracted because the making of the representations involved the use of postal, telegraphic (email) or telephonic services within the meaning of s 6(3) of the Trade Practices Act by Mr Joyce and Mr Reed from Dubai to Australia. Reliance is also evidently placed on s 5(1) of that Act insofar as respondents have Australian Citizenship or residence, or as the case may be with a corporate respondent, Australian incorporation or business activity. The jurisdictional basis in respect of the claim in tort must be found in the proposition that this common law cause of action is an "associated matter" in relation to the trade practices matter for the purposes of s 32 of the Federal Court of Australia Act 1976 (Cth)(Federal Court of Australia Act). 6 At the time when the present interlocutory application was heard, the respondents had not by then filed defences. Each has since done so. 7 In 2009 the public prosecutor in the UAE commenced criminal proceedings (Criminal Claim No 2130/2009) in the Dubai Court of First Instance against, materially, Mr Reed and Mr Joyce. In those criminal proceedings it is alleged that the Sunland parties were defrauded by, materially, Messrs Reed and Joyce by the making of the alleged representations. Mr Joyce remains in Dubai. He was initially in custody but is now on bail there. Mr Reed is in Australia. He, it seems, is not presently disposed to return to Dubai. 8 In these circumstances, apart from the sum of AED44,105,780, the claim in the proceedings in this Court also seeks damages in respect of the costs of Sunland Group and its staff being investigated by the authorities in the UAE in the investigation which culminated in the criminal proceedings there and loss of reputation suffered by it in the UAE. 9 In the Dubai criminal proceedings Sunland Group, by its lawyers there, initially made a "civil right" claim for "provisional compensation" of AED 20,000.00 against, materially, Mr Joyce "without prejudice to [its] right to claim his [sic] civil rights". It has since applied to join, materially, Mr Reed and Prudentia. As Prudentia is not presently a defendant in the criminal proceedings the expert evidence concerning the law and practice of the UAE is that this fact plus its status as a corporation may make its joinder difficult. 10 It was common ground at the hearing of the present interlocutory application that the substratum of facts in respect of the proceedings in this Court, the criminal proceedings in Dubai and the civil right claim in those proceedings is substantially the same. 11 The ability to make such a "civil right" claim in the criminal proceeding in Dubai is the subject of expert evidence. That discloses that the law of the Emirate, found in the UAE Criminal Procedure Law, is that, "[w]hoever sustained a direct personal prejudice from the crime is entitled to claim from the accused his civil rights during the gathering of evidence, proceeding with the investigation or before the court examining the criminal case, at any stage of the trial up to the close of oral pleadings .. (Art 22). Further, "[t]he conclusive criminal judgment rendered on the merits of a criminal action declaring innocence or guilt has res judicata and is binding on the civil courts in matters not yet settled by a conclusive judgement …" (Art 269). 12 Strictly, a person who makes a civil right claim pursuant to Art 22 in a criminal proceeding is entitled actively to participate in that proceeding only in relation to that civil claim. However, in practice, the distinction between the civil right claim and the criminal charge in the proceeding is often unclear such that a civil right claimant may be permitted, by the judge, to ask questions at the criminal trial and to liaise with and supply material to the public prosecutor. If there is a finding of guilt the judge can enter a finding as to interim compensation and then refer the civil right claim to the civil courts for final determination. Alternatively, the judge in the criminal proceeding could simply dismiss the civil right claim if the judge considers that course to be appropriate. 13 The size of the amount sought in the civil right claim is such that, in practice, it is likely that, if a defendant is found guilty, the criminal court judge would refer the assessment of the damages claim to the civil courts. 14 Were the defendants to be found not guilty in the criminal proceedings, the expert evidence is that the Sunland parties would then have the option of commencing a separate suit in the civil court in the UAE relying on the ordinary provisions of the civil and commercial laws of that place. 15 Once a civil right claim is filed in a criminal proceeding in Dubai the public prosecutor does not have a discretion to refuse to allow its continuance in those proceedings. One expert (Mr Juma) stated that, "The strategic objective with filing an initial damages claim as part of the criminal proceedings is not to substitute a claim in the civil courts for damages. However, it can be used to support a claim before the civil courts for damages (as the criminal court would have already decided on liability and initial damages). In other words, a judgment in the criminal court that initial damages are payable (or that the matter should be referred to the civil courts) should strengthen the plaintiff's claim before the civil courts. Filing an initial damages application also gives the plaintiff the right to appeal against any decision of the public prosecutor not to proceed with the criminal investigation (i.e. if the prosecutor decides not to refer the matter to the criminal court). This can be an efficient way for the plaintiff to save time and money". [sic] 16 An accused can be tried in absentia in Dubai. Because Mr Reed left Dubai before the criminal proceedings started, he cannot have a lawyer represent him in those proceedings unless he returns to Dubai and appears in the criminal court. 17 Initially, Prudentia, Hanley and Mr Reed (the restraint applicants) sought interlocutory injunctive relief in these proceedings against the Sunland parties restraining them from: (a) taking any step to maintaining and prosecuting any application for compensation or a civil remedy in the criminal proceedings in Dubai or to commence to take any step in relation to any other civil proceeding against Mr Reed in the UAE arising out of or in relation to the matters pleaded in the statement of claim; (b) taking any step to commence or maintain any civil proceeding against Prudentia or Hanley in the UAE arising out of or in relation to the matters pleaded in the statement of claim. On the hearing of their application for this interlocutory relief there was a refinement of the relief sought in the first instance. The restraint applicants came to reserve their position in respect of the wider, originally sought relief. Instead, Mr Reed sought that the Sunland parties "be restrained from taking any step to prosecute any application for compensation or a civil remedy in the matter identified as Criminal Claim No 2130/2009 in the Dubai Court of First Instance in the [UAE] against [him] pending the final hearing and determination of [the proceeding in this Court] including any appeal therefrom". It is whether to grant that narrower relief that presently falls for determination. 18 That this Court has power to grant the relief sought is not controversial. The source of that power is, in my opinion, in the case of the Federal Court, derived from the creation by statute of the Court as a superior court of law and equity (s 5(2) of the Federal Court of Australia Act) possessed of power in respect of a matter in which it has jurisdiction to make such orders as the Court thinks appropriate (s 23 of the Federal Court of Australia Act), rather than "inherent jurisdiction". 19 The origins of the power to grant the relief sought may be traced to equitable remedies granted by the English Court of Chancery: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 230-233. Those origins demonstrate that, conceptually, the granting of such relief is part of the jurisdiction of a court of equity to prevent the abuse of its process. To this end, in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [9] it was stated: Abuse of court process 9. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum. Again, in Cardile v LED Builders Pty Ltd, Gaudron, McHugh, Gummow and Callinan JJ referred to the passage in the joint judgment in CSR Ltd v Cigna Insurance Australia Ltd where it was said of the grant of an anti-suit injunction that the counterpart of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion. [Footnote references omitted] 20 Of the cases referred to in the passage quoted, CSR Ltd v Cigna Insurance Australia Ltd (1989) 189 CLR 345 at 396 counsels that, "the power to grant injunctions in restraint of foreign proceedings should be exercised with caution". The reason for that, as Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ stated in their joint judgment in that case (at 395-396), is that such relief, though granted in personam, interferes with the processes of a foreign court and may be perceived as a breach of "comity" in the sense described by the Supreme Court of the United States in Hilton v Guyot (1895) 158 US 113 at 163-164: 'Comity', in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. 21 For the Court to grant the type of restraint which Mr Reed seeks he must show, that, pending the hearing and determination of the present Australian proceedings, the further prosecution of the civil right claim against him in the Dubai criminal proceedings would be "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging": Oceanic Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 (Deare J) and CSR Ltd v Cigna Insurance Australia Ltd at 401 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). Something more than just the existence of duplicate or parallel proceedings and inefficiency or additional cost must be shown for these criteria to be met: TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433 at [56]-[57] per Gordon J (Stone J agreeing); see also at [33] per Finkelstein J. 22 As does Finkelstein J in TS Production LLC v Drew Pictures at [32], and contrary to a statement in Dicey and Morris, The Conflict of Laws (14th ed, Sweet & Maxwell, 2006) at p 504, I respectfully doubt whether, having regard to the reference to these cases in CSR Ltd v Cigna Insurance, there is any "narrower" Australian test with respect to the granting of an "anti-suit" injunction than that stated by Lord Goff in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 at 892 and by him in 1984, as Robert Goff LJ (as his Lordship then was), in Bank of Tokyo v Karoon [1987] AC 45 at 60 [Note]. His Lordship returned to the subject and restated in the following way the test he had enunciated in those earlier cases for the granting of this type of restraint in Airbus Industrie GIE v Patel [1999] 1 AC 119 at 133: The broad principle underlying the jurisdiction is that it is to be exercised when the ends of justice require it. Generally speaking this may occur when the foreign proceedings are vexatious or oppressive. ... but, as was stressed in the Aérospatiale case ... in exercising the jurisdiction regard must be had to comity, and so the jurisdiction is one which must be exercised with caution. To me, that statement has an obvious affinity with the passages which I have cited from CSR Ltd v Cigna Insurance Australia. 23 Mr Reed's submissions, correctly in my view, included the concession that the mere fact that there is duplication to some extent in the proceedings in this Court and in the civil right claim presently before the Dubai Court of First Instance is insufficient to warrant granting the relief sought. Instead he pointed to the following: (a) The Sunland parties had chosen to institute the present proceedings in Australia against him. (b) He is present in Australia. (c) The civil right claim in the Dubai criminal proceeding is in the nature of an addendum to those foreign proceedings. (d) The price of his presenting himself in Dubai to defend the civil right claim is to expose himself to the criminal jurisdiction there. That, he submitted, was too high a price to pay for the exercise of a right to defend the civil right claim. (e) A judgment in respect of the civil right claim in the UAE, be it granted in the criminal court itself or by a civil court after referral, could not be enforced here. Nor, it was submitted, could such a judgment be enforced more widely in the Middle East. In other words, the civil right claim offered no juridical advantage to the Sunland parties. Mr Reed asserted that he had no assets in Dubai. It was emphasised that Mr Reed was not seeking to restrain the institution by the Sunland parties of any civil proceedings at any time against him in Dubai only the present civil right claim and then only pending the hearing and determination of this present Australian proceeding. 24 Mr Reed's submissions sought to draw an analogy, so far as the granting of a restraint was concerned, with whether a foreign judgment would be recognised and enforced in Australia. An action here on a foreign judgment may be defended on the basis that the defendant was not afforded natural justice in the foreign proceedings: Boele v Norsemeter Holding AS [2002] NSWCA 363 at [24]. The ability in the UAE to proceed against Mr Reed in absentia, including in respect of the civil right claim brought in the criminal proceeding in Dubai constituted, it was submitted, a denial of natural justice. The analogy was said to be found in that it was "equally important that the court restrains the pursuit or commencement of such [a] foreign proceeding". It was submitted that such a proceeding was vexatious or oppressive because of clear "procedural defects". Reference was also made, again by analogy, to the circumstances in which an Australian court would stay a proceeding before it in light of a foreign proceeding. One circumstance, it was submitted, which told against such a stay was the existence of procedural defects in those foreign proceedings, e.g. Toop v Mobil Oil New Guinea Ltd [1999] VSC 11 where gross delay in a foreign proceeding was taken into account. 25 The Sunland parties emphasised that it was for Mr Reed to demonstrate that the restraint sought was warranted, not that a restraint would go unless they demonstrated some sufficient reasons to the contrary. That submission accords with my understanding of the position described in the authorities which I have set out above. "Comity" as mentioned in those authorities, told, they submitted, against any restraint of the civil right claim in Dubai. The Sunland parties also emphasised that the mere existence of two proceedings, one in Australia, the other abroad was not oppressive. 26 The Sunland parties put forward three matters in particular as telling against any ability on the part of Mr Reed to discharge the persuasive onus that lay on him: (a) The Dubai criminal proceeding was not properly to be characterised as the proceedings of the Sunland parties; (b) The Sunland parties had a legitimate interest in taking steps in the UAE to protect their interests; and (c) Mr Reed cannot be said to be "vexed" in terms of the authorities by proceedings in which he is not participating. 27 As to the proceeding in the Dubai Court of First Instance, this it was submitted, was commenced by the authorities in Dubai and the Sunland parties did not control it. It was not, it was submitted, for an Australian court to take steps which would restrict the criminal courts in Dubai from taking steps to order compensation to the victims of crime there. Further, there was not a complete coincidence of parties as between the defendants in that proceeding and the respondents in the present proceeding. Neither, it was submitted, was there a complete coincide of issues as the charges before the Dubai court were not just fraud but also related to the alleged obtaining by Messrs Joyce, Lee and Brearley, in their capacity as government officials, of obtaining secret profits and damaging the state, acts in which Mr Reed was alleged to be an accessory. 28 It is true that the Dubai criminal proceeding itself is one under the control of the public authorities there. However, on the expert evidence as to the law there, whether or not a civil right claim is brought in those criminal proceedings is a matter for the party seeking compensation. For this Court to restrain the Sunland parties from further pursuing that civil right claim would not, in any way, be to restrict the pursuit of criminal remedies in the courts in Dubai by the public authorities in the UAE. 29 That the criminal proceedings in Dubai also concern other parties and wider issues than those in the present proceedings is a truism but hardly in itself decisive one way or the other. 30 That is in contrast with the legitimate interest consideration raised by the Sunland parties. That consideration of itself, in my opinion, tells against Mr Reed's being able to demonstrate a sufficient reason why a restraint should be ordered. Especially that is so having regard to the caution that, on the authorities, ought to attend the granting of a restraint of the kind sought. 31 Merrill Lynch, Pierce Fenner & Smith Incorporated v Raffa (High Court of Justice of England & Wales, Commercial Court, No 1999 Folio 1373, 11 May 2000, His Honour Judge Jack QC, sitting as a Judge of the High court, unreported), a case to which I was taken by the Sunland parties, is of present interest for the observation made by Judge Jack QC (at page 6) in respect of what appears to have been the taking of a similar step by Merrill Lynch to seek a civil right to compensation in an Egyptian criminal proceeding pending against Mr Raffa. Mr Raffa was alleged to have defrauded a client of Merrill Lynch. That conduct led to his facing a criminal proceeding in Egypt. Merrill Lynch, which had reimbursed the client, also instituted a proceeding in the High Court of England and Wales against Mr Raffa. In the English proceeding, Merrill Lynch claimed the recovery of the sum it had reimbursed, advanced tracing claims and sought an account of profits. Mr Raffa, who was in custody in Egypt, sought in the English High Court, the stay of the proceeding in that court pending the determination in Egypt of the civil right claim which Merrill Lynch had brought in the criminal proceeding there. The civil right claim in that case appears to be of a similar nature to that made by the Sunland parties in the Dubai criminal proceeding. Judge Jack QC described the making of that claim in the Egyptian criminal proceeding as "an obvious step to take in the circumstances to protest Merrill Lynch's interests" (at page 6). His Honour did not consider that the making of the civil right claim rendered the continuation of the English action vexatious but the case is of interest not for that but for the thought it provokes by analogy about the civil right claim in the Dubai criminal proceeding. 32 That there may be forensic advantages in terms of law and practice in Dubai in the making of the civil right claim emerges from the expert evidence. The Sunland parties may well benefit from the amalgam of their own resources and those of the public authorities in Dubai in demonstrating that Mr Reed has committed fraud there. If so, a guilty verdict will, at the very least, be of singular advantage in terms of assisting their establishing liability in their civil right claim. That advantage will be retained even if, as appears likely, the criminal court were, in the event of a finding of guilt, to decide, given the quantum of the claim, to refer it to a civil court. 33 Any such advantage would be lost in the event that a restraining order is made and it transpires that the Dubai criminal proceeding is completed before this proceeding is concluded. This proceeding in this Court is presently set down for trial in late October this year. Whether it will be possible then to receive evidence from Mr Joyce (if he chooses to give evidence) is moot. Quite how that might be done, given his present inability to leave Dubai, is yet to be determined in this proceeding. It seems likely though that the reception of his evidence may require the allocation of later, additional hearing dates. When the Dubai criminal proceeding will conclude is uncertain. It would be for Mr Reed to evidence that the likelihood is that they will not be concluded until after this proceeding has been heard and determined. He has not done so. 34 So far as the law of the UAE is concerned, the position seems to be that a judgment of this Court in the present proceeding will not be enforceable there. 35 In contrast, a judgment in respect of the civil right claim may be able to be enforced by the Sunland parties in other Arab League countries in the Middle East pursuant to bilateral and multilateral treaty arrangements to which the UAE is a party (Treaty for the Enforcement of Judgements, Judicial Delegation and Court Summons 1996 between the six member states of the Gulf Co-operation Council and Riyadh Arab Agreement for Judicial Co-operation 1983, applicable to the 22 members of the Arab League). I put that proposition in a tentative way because, while I was referred to two treaties, there may be a need for expert evidence in respect of other particular Middle Eastern countries as to whether, under their domestic law, a Dubai judgment would be able to be enforced. For the moment, the position is speculative. There is a possibility of a wider utility in the Middle East of a Dubai judgment. It is perhaps better put that Mr Reed has not demonstrated that a Dubai judgment in respect of the civil right claim cannot be enforced in places other than Australia. Neither has he demonstrated that in such places a judgment of this Court could be enforced. 36 The UAE is not one of the countries listed in the Schedule to the Foreign Judgements Regulations 1992 (Cth). Thus, a judgment in respect of the civil right claim or in any other civil proceeding which may be brought there by the Sunland parties against Mr Reed will not be able to be registered here under the Foreign Judgements Act 1991 (Cth). It is also highly unlikely, for the reason given above, that, at common law, an order for compensation made as a sequel to a criminal proceeding determined against Mr Reed in absentia would be enforceable in Australia. 37 Mr Reed's assertion as to an absence of assets in Dubai is just that, nothing more than an assertion. He has not given evidence as to an absence of assets in the UAE against which a judgment in the civil right claim might be enforced. Again, the onus lies on him to adduce such evidence. 38 The land concerned is in Dubai. Relevant events apparently took place in Dubai as well as, via telephonic and electronic means, here also. Given the circumstances alleged in the statement of claim, the law of Dubai in relation to the purchase and sale of land and title to land, will be relevant whether a proceeding is brought here or in Dubai. There is an obvious "Dubai connection" both to the criminal proceeding and the civil right claim made in that proceeding. 39 The Sunland parties were under investigation themselves by the authorities in Dubai. There may well be inchoate benefits for the Sunland parties, in the UAE, from being seen there to have instituted a civil right claim against, materially, Mr Reed and to be seen actively to be participating in the criminal proceeding in co-operation with the public authorities. 40 All in all, the civil right claim in Dubai is "an obvious step to take in the circumstances" for the Sunland parties to protect their interests 41 The proceeding in this Court might also be termed an "obvious forensic step in the circumstances", especially given Mr Reed's residence and Prudentia's incorporation in Australia. It is by no means unusual where an alleged fraud has factual connections with more than one country and, further, respondents resident in more than one country, for resultant civil proceedings to be instituted in the courts of each country. 42 Further, Mr Reed's usual Australian residence or his Australian citizenship do not mean that, when involved in a business there, the laws of Dubai both civil and criminal do not apply to him in respect of his involvement in that business. Instead, all that such a status may bring with it is relief, in practice, from the consequences of a transgression of those laws by virtue of an absence of extradition or enforcement of judgment arrangements. "Comity" does not favour the making of a restraining order. 43 Whether Mr Reed has, for the purposes of the criminal laws of the UAE, been notified of the criminal proceeding against him in Dubai is not the subject of evidence. What is clear is that he is aware of the existence of that proceeding and of the civil right claim made against him in that proceeding. That criminal proceeding and that civil right claim presently occasion Mr Reed no additional expense in Dubai. Even if they did, neither duplication of proceedings nor additional expense would in itself warrant the making of an order to restrain a plaintiff from further conducting one of the proceedings. 44 On the evidence as to the law and practice in Dubai, it is not that Mr Reed would, even if present, be denied an opportunity to be heard by the Court of First Instance in respect of the civil right claim. It is just that his inability, in absentia, even to be represented by a lawyer in the civil right claim would, as noted above, most likely render any resultant judgment against him in Dubai unenforceable here. All that does, as the Sunland parties submit, is to emphasise their legitimate forensic interest also in pursuing remedies against him here via the present proceeding. 45 There is no symmetry between or analogy to be drawn from cases concerning whether, at common law, an Australian court would enforce a foreign judgment and whether such a court would restrain a party from pursuing, in a foreign court, a remedy which may result in such a judgment. Why that is so is explained by reflecting on the concept of comity. It may well offend comity to restrain a party from the exercise abroad, in a court there, of a right conferred upon him by the law of that foreign country. It does not at all offend comity for an Australian court to refuse to enforce, within Australia, a judgment which that party subsequently secures in a foreign court. Mutually ratified treaty aside, that party can have no legitimate expectation of being able to enforce, outside the jurisdiction in which he obtained it and whatever may be the law, practice and procedure by which it was obtained, the judgment of the foreign court. 46 For these reasons, Mr Reed's application should be dismissed. 47 The matter is next before me for directions on 12 April 2010. Especially given the late "refinement" of the relief originally proposed, it is as well to allow the parties an opportunity to consider these reasons for judgment before hearing submissions as to costs, including as to the extent, if at all, to which costs orders ought to be made against the first and second respondents as well as the third respondent. I shall hear submissions as to costs on 12 April 2010. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd

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