Sywak v Sywak

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 546 CASES CITED : Karam v ANZ Banking Group [2003] NSWSC 866 Ramanathan v Naidu [2007] NSWSC 693

(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body. 9 For Mrs Sywak it is argued nevertheless, that the section may not be so understood. Two matters are principally relied on to advance that argument. 10 The first, flowing from a decision given by Registrar Bradford in Ramanathan v Naidu [2007] NSWSC 693. There the Registrar referred to the relevant provisions of the then Supreme Court Rules 1970, which applied to the application. Part 59A Rule 8 provided:

(b) where such an application has been made, until after the application has been finally determined." 18 Obviously a judgment debtor must have an opportunity to set aside registration and during that time s 6(10) precludes the judgment creditor from enforcing the judgment. If no application is made to set aside the registration, a creditor is then free to enforce the judgment in Australia. 19 That a foreign judgment might nevertheless, subsequently be satisfied by the debtor in the foreign jurisdiction is a possibility which the Act expressly contemplates. Section 7(2)(x) then mandatorily provides that registration in Australia must be set aside. That is an understandable mechanism, given that what brought the application for registration to the Australian court, the debtor's failure to satisfy the foreign judgment, having been addressed. 20 That in those circumstances, an extension of time to file an application to set aside the registration is also contemplated by the Act, is in the face of the provision made in s 6(10) not surprising. To the contrary, it appears to be a necessary part of the scheme. Why would Australia any longer wish to concern itself with the enforcement of a foreign judgment, once it has been satisfied in the country in which the judgment was given? If the construction for which Mrs Sywak contends were correct, it is difficult to see what work s 7(2)(x) would have to do, in this statutory scheme. It would appear to operate only if the foreign judgment were satisfied within the time fixed by the order registering the judgment, for making the application to set the judgment aside. That seems unlikely to have been intended, given that the Act also contemplates that an application for extension of time to set aside the registration may be granted and that it provides that if the foreign judgment is satisfied, registration must be set aside. 21 While it is sometimes difficult to discern the purpose of legislation, or a particular statutory provision, that is not this case. Here, the apparent unfettered discretion to grant an extension of time within which to make an application to set aside the registration of a foreign judgment, appears consistent with the purpose of the statutory scheme, namely to permit enforcement of certain overseas judgments in Australia, which have not been satisfied in the country in which the judgment was given. This is not a case where one must strain to find a meaning for words used in s 6(5), but rather where a party seeks to read into a seemingly unambiguous provision, words of limitation not contained in the provision itself, which do not sit comfortably with the statutory scheme. Once the foreign judgment is satisfied, the reason for its registration disappears. That is, undoubtedly, why s 7 requires that its registration must be set aside once the foreign judgment is wholly satisfied. Permitting an extension of time to make such an application when a foreign judgment is satisfied after the period specified in s 6(4) is consistent with what s 7 requires. The provision made in s 6(10), halting enforcement proceedings during such a period, is also consistent with a scheme which does not contemplate Australian enforcement of a foreign judgment which has been wholly satisfied. 22 The second argument advanced for Mrs Sywak to support the view that the apparent discretion provided by s 6(5) is not available to be exercised, rested on the provision made in s 6(10), earlier set out. 23 It could not have been intended, it was argued, that the time for setting aside a registration of a foreign judgment could be extended, unless the time for making an application for extension was made within the time fixed for such an application in the original order of registration. To permit the extension of time to a point in time after the judgment creditor had taken steps to enforce the registered judgment, could not have been intended, because such an extension would, it was argued, have unintended consequences for enforcement proceedings already underway, when the application for extension of time was made, namely to disqualify the creditor from continuing to enforce the judgment. 24 That, it seems to me, is also an argument which may not be accepted. If a judgment is registered, a creditor is entitled to enforce it, but plainly a debtor is also entitled to pay the underlying debt, the foreign judgment which was registered in Australia. If enforcement proceedings have been taken in Australia and subsequently the registration of the foreign judgment in Australia is set aside, because the foreign judgment has been wholly satisfied, the result that enforcement proceedings commenced in Australia, may thereafter not be pursued, is not surprising. That is merely reflective of the fact that what originally brought the parties before the Australian Court has been satisfied. Indeed, it might be thought that the enforcement proceedings had been effective, resulting in the foreign judgment being satisfied. That s 6(10) contemplates that in such a situation, a foreign judgment having been satisfied and an Australian Court granting an extension of time to make an application to set the registration of that judgment aside, that there will be an impact on the enforcement proceedings undertaken in Australia, is also not surprising. After all, if the foreign judgment debt has been satisfied, there is no longer any purpose in enforcement of the Australian judgment being pursued. The situation would be no different if an Australian judgment debt were being pursued in enforcement proceedings in Australia. Satisfaction of the debt would naturally bring the enforcement proceedings to an end - there being nothing left to enforce. 25 Granting an application to give an extension of time for the making of an application for an order setting aside the registration of the foreign judgment, would only result from the exercise of the Court's discretion, an exercise governed by the requirement that the Court do justice between the parties. There seems nothing untoward or unexpected, in the legislature granting an Australian Court such a discretion, in circumstances where a foreign judgment has been satisfied and providing that while such an application is being considered, that enforcement proceedings not be further pursued. While setting aside the registration of a foreign judgment would have an obvious impact on the continued pursuit of the enforcement proceedings, there is no suggestion in the legislation, that this would affect what had occurred in such proceedings to the time at which the registration was set aside. 26 It follows, that the better view as to the proper construction of the section is that contended for on behalf of Mr Sywak. Section 6(5) gives a discretion to grant an extension of time for an application to set aside the UK judgment. Should that discretion be exercised in this case? 27 For Mrs Sywak it was argued that it should not. It was submitted that there were two judgment debts that operated concurrently. Mr Sywak had made a payment in the UK, but had not indicated that it was a payment made in respect of the UK judgment. It was a matter for Mrs Sywak to determine which debt the payment would be directed to. The fact that the application of the debt to the Australian judgment, given current exchange rates, had the result that there was still $20,000 owing in respect of the Australian judgment, was merely argued to be the result of the operation of the Act, which fixed the amount of the Australian judgment by a calculation undertaken as at the conversion date. That statutory exercise having been undertaken, Mrs Sywak should be entitled to pursue what remained outstanding in relation to the registration of the judgment in Australia, notwithstanding that the UK judgment had been satisfied. 28 I am unable to accept that argument. Mrs Sywak obtained a judgment in a UK Court. As she was entitled to do, she registered that judgment in Australia and sought to enforce it here. The result has been that as Mr Sywak was entitled to do, he has paid all that he owed under the UK judgment, by a payment made in UK pounds deposited into Mrs Sywak's UK bank account. Mrs Sywak accepts that nothing remains outstanding in respect of the UK judgment, it has been wholly satisfied, notwithstanding her intention to pursue payment of what she regards to be outstanding under the Australian judgment debt. That has arisen not as the result of anything which either Mr or Mrs Sywak have done. It is merely the consequence of currency fluctuations, since the conversion date. 29 There was an issue between the parties as to whether at common law, Mrs Sywak had the right of election which she claims to have made, in the particular circumstances. Reference was made to Karam v ANZ Banking Group [2003] NSWSC 866 where it was observed at [17]:

(1996) 186 CLR 541