Nyunt v First Property Holdings Pte Ltd

1. [1]

   BELL CJ: The parties to this appeal have been involved in litigation with each other for close to 20 years, initially in Myanmar, then Singapore, then Myanmar again and, more recently, in Australia, in Myanmar and Singapore again, and now again in Australia, in the form of this appeal. There is ongoing litigation in Myanmar.

2. [2]

   The disputes between the parties have their genesis in a joint venture agreement (JVA) between the Appellant, Mr Michael Nyunt (Mr Nyunt), a dual citizen of Myanmar and Australia, and the Respondent, First Property Pte Ltd (First Property), a Singaporean company. On 9 September 1996, Mr Nyunt and First Property entered into the JVA, which contemplated the joint purchase and development of several investment properties in Myanmar.

3. [3]

   The joint venture was to be conducted through a joint venture company incorporated in Myanmar, Town and City Co Ltd (TCC), and the JVA contemplated that First Property would advance up to US$7,600,000 to TCC which would be secured by TCC issuing a “convertible performance debenture” (CPD) to First Property. The commercial arrangement between the parties appears to have been designed to take account of laws in Myanmar which regulated the ownership of real property by foreign entities (and which therefore would have precluded First Property from owning shares in TCC for a certain period of time after its incorporation). The shares in TCC were initially issued to Mr Nyunt and his brother (who held his share on trust for Mr Nyunt).

4. [4]

   The two principal properties acquired and developed by TCC were known as Tarmway Plaza and Natmauk Lane, both of which were located in the Burmese city of Yangon.

5. [5]

   On 3 March 1998, Mr Nyunt and First Property entered into a further loan agreement, under which First Property agreed to extend up to US$850,000 to Mr Nyunt (the 1998 loan agreement). This agreement is of little relevance to the substance of this appeal, as the claim arising under the agreement has now been set aside in the High Court of the Republic of Singapore (the Singapore High Court), as explained below.

6. [6]

   Clause 14 of the JVA provided, under the heading “GOVERNING LAW”, as follows:

7. [7]

   Notwithstanding this clause, First Property commenced a number of proceedings in Myanmar in relation both to Tarmway Plaza and Natmauk Lane (the Myanmar litigation). Those proceedings involved issues concerning, inter alia, the right to control Tarmway Plaza; and the sale of Natmauk Lane to Mr Nyunt (or interests connected with him) in October 2000, allegedly involving a breach of fiduciary duty. These proceedings are referred to in more detail below.

8. [8]

   In 2015, after some but not all of the Myanmar litigation had reached some form of resolution (the precise nature of which is not unimportant, as shall be seen), First Property commenced proceedings against Mr Nyunt in Singapore. On 14 January 2016, the Singapore High Court entered default judgment in favour of First Property, in the sum of US$585,143.67 (plus interest and costs) in relation to Mr Nyunt’s breach of the 1998 loan agreement, including an order for damages to be assessed in relation to a claim for breach of fiduciary duty (the Singapore default judgment).

9. [9]

   On 8 November 2016, the Singapore High Court determined that damages in respect of the claim for breach of fiduciary duty would be fixed at US$66,243,572.84 (the Singapore assessment judgment). The procedural steps leading to this decision are set out in detail at [103] below.

10. [10]

    Mr Nyunt did not participate in either of the hearings which led to the Singapore default and assessment judgments (collectively, the Singapore judgments), although he was aware of the Singapore proceedings and there was no issue that he had been served with the initiating process and other documents relating to those proceedings (although not the affidavits upon which First Property relied to substantiate its damages claim). The evidence (and unchallenged finding of the primary judge) was that he deliberately chose not to participate in the Singapore proceedings on the basis of legal advice that any judgment(s) obtained by First Property would not be enforceable in Myanmar: First Property Holdings Pte Ltd v Nyunt [2019] NSWSC 249 at [92], [111]–[112], [171] (the primary judgment or PJ).

11. [11]

    The Foreign Judgments Act 1991 (Cth) (FJA) provides for a system of enforcement, in Australia, of the money judgments of certain foreign countries (including Singapore) by registration. After a judgment is registered under the FJA, the judgment debtor is afforded an opportunity to apply to set aside the registration of the judgment on certain grounds specified in the FJA. The Singapore judgments were registered in Australia on 2 March 2017, pursuant to s 6 of the FJA, as a judgment of the Supreme Court of New South Wales in the amount of US$66,828,716.51 and SG$33,530.00, plus interest in a nominated amount.

12. [12]

    On 17 March 2017, Mr Nyunt filed a Notice of Motion seeking to have the registration of the Singapore judgments set aside, pursuant to s 7 of the FJA (the set aside application). The terms of s 7 of the FJA are reproduced at [66] below.

13. [13]

    Although the Notice of Motion was not framed precisely in these terms, the primary judge understood it to invoke the following grounds for setting aside the registration of the Singapore judgments pursuant to s 7 of the FJA:

    1. (1)

       that the courts of Singapore had no jurisdiction in the circumstances of the case, pursuant to s 7(2)(a)(iv) of the FJA;

    2. (2)

       that Mr Nyunt had not received notice of the Singapore proceedings in sufficient time to enable him to defend the proceedings and did not appear, pursuant to s 7(2)(a)(v) of the FJA;

    3. (3)

       that the Singapore judgments were obtained by way of fraud, pursuant to s 7(2)(a)(vi) of the FJA;

    4. (4)

       that the enforcement of the Singapore judgments would be contrary to public policy, pursuant to s 7(2)(a)(xi) of the FJA; and

    5. (5)

       that the matters in dispute in the Singapore proceedings had already been the subject of a final and conclusive judgment by a court having jurisdiction, pursuant to s 7(2)(b) of the FJA.

14. [14]

    Her Honour found that none of these grounds was made out, and on 13 March 2019 she dismissed Mr Nyunt’s set aside application. In the primary judgment, her Honour also gave reasons for declining to permit Mr Nyunt to re-open argument on the set aside application to lead fresh evidence of various developments in the litigation between the parties in Myanmar. A challenge to that decision is also considered later in these reasons.

15. [15]

    Following delivery of the primary judgment, and prior to the active prosecution of this appeal, Mr Nyunt also applied to the Singapore High Court to have the Singapore judgments, and indeed the Singapore proceedings, set aside. He was largely unsuccessful in this endeavour (other than to the extent of US$585,143.67, as explained at [18] below; and see First Property Holdings Pte Ltd v U Myo Nyunt (alias Michael Nyunt) [2020] SGHC 276).

16. [16]

    Prior to the hearing of the appeal in the present case (the principal reason for its delay being the grant of a temporary stay), Mr Nyunt was also unsuccessful in prosecuting an appeal to the Singapore Court of Appeal in relation to his failure to have the Singapore judgments set aside: U Myo Nyunt @ Michael Nyunt v First Property Holdings Pte Ltd [2021] SGCA 73. Some of the arguments sought to be agitated on appeal in this Court were considered and rejected by the Singapore Court of Appeal, a matter that adds a further degree or layer of complexity to the current appeal, although it was not submitted by Mr Colquhoun (appearing for First Property) that the 2020 and 2021 Singapore judgments themselves generated any issue estoppels. To the extent that it was necessary to grant leave to adduce evidence of those Singapore judgments, leave should be granted.

Grounds of appeal and summary of conclusions

1. [17]

   The appeal is brought on the following substantive grounds as summarised in Mr Nyunt’s written submissions:

2. [18]

   There is a sixth ground of appeal which relates to the fact that the Singapore default judgment (which included an award of a liquidated sum of damages for US$585,143.67 under the 1998 loan agreement) was set aside by Lee Ming J (of the Singapore High Court) on 18 December 2020: see [15] above. This ground is as follows:

3. [19]

   Ground 2 implicitly recognises and seeks to deal with the fact that, ordinarily, a foreign court will have jurisdiction over a foreign defendant “in the international sense” where the foreign defendant has been served with process in the foreign jurisdiction (not this case) or has otherwise submitted to that jurisdiction. Such submission may be evidenced by the foreign defendant entering an appearance in the proceedings (also not this case) and/or participating in the merits of the dispute (as opposed to challenging jurisdiction). Alternatively, the foreign defendant may contractually submit to the foreign court’s jurisdiction in advance (which is what First Property contended was this case).

4. [20]

   It has already been noted that the JVA between the parties contained, in cl 14, an agreement by Mr Nyunt to submit to the jurisdiction of the Singapore courts. Mr Nyunt’s argument under ground 2 was that First Property lost the right to rely on this clause of the JVA because it brought various proceedings in Myanmar before it commenced its proceedings in Singapore (the election issue). Alternatively, he contended that the jurisdiction clause in favour of Singapore was not broad enough to capture all of the claims brought against Mr Nyunt in the Singapore proceedings (the scope issue).

5. [21]

   First Property contended that the election issue was not run in the set aside application, was an argument that should be rejected in any event and that, on the scope issue, the primary judge was correct to reject the argument. For reasons explained below, I agree with these contentions.

6. [22]

   Ground 3 may be described as the sufficient notice ground. In essence, it is to the effect that, although Mr Nyunt was well aware of the Singapore proceedings, he was not aware of the size or monetary extent of the claim. So much was not in issue as neither the Statement of Claim nor the Amended Statement of Claim in the Singapore proceedings identified the monetary amount of the claim and the evidence in support of the claim was never served on Mr Nyunt. There was an issue as to whether First Property had been obliged to serve this evidence on Mr Nyunt, and a further issue, if it was so obliged, as to what consequences (if any) flowed from this non-service for the purposes of the sufficient notice ground. In oral argument, it was also contended that the non-service of the supporting evidence was a reason why registration of the Singapore judgments should be set aside on public policy grounds, pursuant to s 7(2)(xi) of the FJA.

7. [23]

   For reasons expressed below, I would also reject Mr Nyunt’s contentions in this regard. There was no doubt that he had notice of the Singapore proceedings, knew that he was being sued for breach of fiduciary duty and knew that damages were being sought, the basis of which (albeit not the amount) was set out expressly in the Singapore Statement of Claim. He was aware that First Property would be filing evidence and indeed was told contemporaneously that it had been filed. He did not seek to obtain a copy of that evidence either from First Property’s solicitor or from the Singapore High Court registry. Whilst the arguable non-compliance by First Property with a procedural direction to serve the affidavit evidence on Mr Nyunt was regrettable, it did not mean that he did not have sufficient notice of the Singapore proceedings for the purposes of s 7(2)(v) of the FJA.

8. [24]

   Ground 5 of the appeal (the public policy issue) was ambitious. “Public policy” as a basis for resisting the enforcement of a foreign judgment, whether in terms of setting aside its registration under the FJA or at common law, is not a concept that is designed to afford the court of registration a broad, merits-focused basis for setting aside the registration of (or refusing to enforce) a foreign judgment. The same observation applies in the cognate area of the enforcement of international arbitral awards.

9. [25]

   Mr Nyunt’s principal appeal to public policy was in substance a complaint that First Property had engaged in an illegitimate form of “forum shopping”, having resorted to litigation in Singapore only after its various attempts to litigate in Myanmar had been unsuccessful. In my view, the primary judge was correct to reject this basis for setting aside the registration of the Singapore judgments and this ground of appeal, too, should be dismissed.

10. [26]

    As noted at [18] above, it was common ground on appeal that, as a result of the partial setting aside of the Singapore default judgment (in the liquidated sum of US$585,143.67), ground 6 must be upheld and the appeal to this Court must be allowed at least in part.

11. [27]

    In the event that the appeal otherwise failed (as, for the reasons expressed in the balance of this judgment, is the case), Mr Nyunt sought an order extending an existing stay upon the enforcement of what is now (following registration of the Singapore judgments, in the Common Law Division of this Court, on 2 March 2017) a judgment of this Court. The extended stay was sought until the determination of still further related proceedings in Myanmar. Those proceedings involve a claim by Mr Nyunt against First Property for damages in the sum of US$75.9 million following the dissolution of an injunction which had been obtained by First Property against Mr Nyunt in Myanmar. In essence, it is a claim brought on the basis of the undertaking as to damages given by First Property when it first obtained injunctive relief in Myanmar.

12. [28]

    For reasons given later in this judgment, any application for a stay of execution of judgment should be made to a judge in the Common Law Division of the Supreme Court of New South Wales.

13. [29]

    In order to consider a number of the grounds of appeal and Nr Nyunt’s various arguments, it is necessary first to set out in some detail the history of litigation between the parties in Myanmar.

The Myanmar litigation

1. [30]

   During 2003 and 2004, First Property commenced three sets of proceedings against Mr Nyunt in Myanmar which are of relevance in this appeal.

2. [31]

   On 14 February 2003, First Property commenced proceedings in Myanmar against Mr Nyunt and Mr U Kyaw Tint (allegedly a fellow director of TCC), pursuant to ss 282 and 282A of the Burma Companies Act 1914 (Myanmar) and s 114 of the Penal Code 1861 (Myanmar). Evidence was led before the primary judge from an expert witness, Dr Min Thein, about the interpretation and application of these provisions in the courts of Myanmar.

3. [32]

   A translation of ss 282 and 282A of the Burma Companies Act was in evidence. The relevant section for present purposes is s 282A, which provides:

4. [33]

   Section 114 of the Myanmar Penal Code deems a person to have committed an act or offence if they aid or abet the commission of the act or offence, notwithstanding absence at the situs of the relevant act or offence.

5. [34]

   For present purposes, three observations should be made about the Burma Companies Act Proceedings. First, they are best described, as the primary judge adopted at PJ [161], as criminal proceedings in the nature of a private prosecution. Second, Dr Min Thein (an expert on Burmese law called by First Property) confirmed that, on a successful prosecution under s 282A, the relief available to the complainant may include an order for the delivery up or return of any improperly obtained property and, if the defendant failed to comply with such an order, the court may impose a term of imprisonment. Third, the evidence of Dr Thein established that the applicable standard of proof in the proceedings was “beyond reasonable doubt”.

6. [35]

   An unchallenged translation of First Property’s Application (the relevant form of originating process) to the Myanmar Court (Bahan Township Court, Yangon Division) was also put in evidence. The key factual allegations relevant to the s 282A Burma Companies Act claim can be summarised as follows:

   1. (1)

      that on 30 December 1996, Mr Nyunt purchased the Natmauk Lane property on behalf of TCC for US$3,067,284, using funds borrowed from First Property;

   2. (2)

      that in June 2000, Mr Tint, claiming to be a director of TCC, caused the company to sell the Natmauk Lane property; and

   3. (3)

      that Mr Nyunt and his wife purchased the Natmauk Lane property from TCC at a considerable undervalue, in breach of cl 8.2 of the CPD (which provided that TCC could not dispose of any assets without the prior written consent of First Property).

7. [36]

   These allegations founded the claim that Mr Nyunt “wrongfully obtained possession [of the property] and caused TCC to suffer unjust loss. Such action in breach of debenture covenants also resulted in loss and damage to [First Property] who was the creditor of TCC.”

8. [37]

   On 8 April 2008, Mr Nyunt was acquitted of the offences under ss 282 and 282A in the Yangon Northern District Court. An unchallenged translation of the judge’s reasons was in evidence. In the following passage, the judge appears to find that the Central Bank of Myanmar had denied permission for TCC to borrow any money from First Property. The judge also referred to evidence given by TCC’s accountant that no monies had in fact been received from First Property. The judge then concluded that First Property had not discharged its burden of proof, such that Mr Nyunt was “acquitted”:

9. [38]

   On 2 May 2003, First Property commenced further proceedings in Myanmar against a number of defendants, including Mr Nyunt and TCC. It sought a declaration, pursuant to s 53 of the Transfer of Property Act 1882 (Myanmar), that the registered deed of sale and purchase which transferred the Natmauk Lane property from TCC to Mr Nyunt and his wife was void as against First Property.

10. [39]

    The allegations made in First Property’s (translated) Application included the following, some of which overlapped with those raised in the Burma Companies Act Proceedings:

    1. (1)

       that TCC owed a debt of US$7,600,000 to First Property;

    2. (2)

       that TCC purchased the Natmauk Lane property using monies advanced by First Property;

    3. (3)

       that Mr Tint, claiming to be a director of TCC, conspired with Mr Nyunt and his wife to execute the deed of sale which effected the transfer of Natmauk Lane to Mr Nyunt and his wife;

    4. (4)

       that the sale of Natmauk Lane to Mr Nyunt and his wife was in breach of cl 8.2 of the CPD, which prohibited TCC from disposing of any assets until the loan to First Property had been repaid, absent the prior written consent of First Property;

    5. (5)

       that the consideration provided by Mr Nyunt for Natmauk Lane was “excessively low” (that is, the property was sold at an undervalue);

    6. (6)

       that Mr Nyunt knew that Mr Tint was not a director of TCC, and did not act in good faith in executing the deed of sale; and

    7. (7)

       that Mr Nyunt “gave priority to his own interest over the interest of [TCC] and the interest of [First Property]” and, in doing so, was “in breach of fiduciary duty owed to [TCC]”.

11. [40]

    The Application continued at [8(e)(5)]: “Conflict of interest and breach of fiduciary duty were clearly evident when [Mr Nyunt] transferred the properties in dispute to himself and his wife … and thereby committing further breach of trust in relation to the properties of [TCC].”

12. [41]

    While the originating process made reference to breach of fiduciary duty, the primary judge, in determining the set aside application, observed that the relevant cause of action was not a claim for equitable compensation for breach of fiduciary duty, but rather for a proprietary remedy (being a declaration that the deed of sale and transfer of the Natmauk Lane property was void): PJ [168].

13. [42]

    Almost 12 years later, on 14 January 2015, the Natmauk Lane Declaration Proceedings were dismissed in the Yangon Western District Court, on the basis that First Property failed to attend. Although each party produced its own translation of the Court’s judgment, the translations do not appear to differ in any material respect for present purposes. They both indicate that an advocate attended on the day of the hearing and purported to act for First Property. However, the advocate did not have the required “power of attorney” to appear for First Property under Myanmar law. The Court therefore dismissed the proceedings on the procedural ground that First Property had failed to appear.

14. [43]

    The primary judge accepted the evidence of the expert witness, Dr Thein, that the Natmauk Lane Declaration Proceedings were dismissed on the application of Mr Nyunt “on the basis that [First Property], its authorised representative and its attorney had been absent from the proceedings since the session scheduled for the date of 22 October 2014”: PJ [164]. Her Honour then continued, “[Dr Thein’s] evidence explained the technical nature of that ruling, which turned on the requirements of Myanmar law as to the right of appearance of foreign entities. It was not a question of First Property having abandoned the case”: PJ [164].

15. [44]

    On 6 February 2015, First Property brought an application to re-open the Natmauk Lane Declaration Proceedings. That application was outstanding as at the time of the hearing of the set aside application by the primary judge: PJ [165]. It was ultimately dismissed on 21 February 2019, several weeks before the primary judge delivered her judgment on the set aside application. The fact of the dismissal of the re-opening application forms part of a body of fresh evidence sought to be adduced on behalf of Mr Nyunt in this appeal.

16. [45]

    On 19 August 2004, First Property, together with Major Myo Thant (Major Thant), commenced proceedings against Mr Nyunt in Myanmar (Yangon Divisional Court), seeking possession of Tarmway Plaza pursuant to s 9 of the Specific Relief Act 1877 (Myanmar). The plaintiffs also sought an interlocutory injunction preventing Mr Nyunt from transferring any units in, or opening, the Tarmway Plaza property. That injunction was granted on 25 February 2005.

17. [46]

    An unchallenged translation of the originating process was in evidence. It relevantly included the following allegations:

    1. (1)

       that a company named Aung Thu Kha Co Ltd (ATKC) had commenced, but was unable to complete, construction of Tarmway Plaza due to a lack of funding. In early 1996, the Managing Director of ATKC contacted Mr Nyunt to obtain additional funding;

    2. (2)

       that Mr Nyunt (as Managing Director of TCC) approached First Property, and together they developed and agreed upon “a plan to bring about” a debenture (i.e. the CPD) which would allow for investment funds to be provided for the Tarmway Plaza project;

    3. (3)

       that, pursuant to the agreement, First Property would invest 95% and Mr Nyunt would invest 5% of funds in all projects to be carried out by the joint venture company, TCC;

    4. (4)

       that, around 17 March 1996, TCC and ATKC agreed to incorporate Tarmway Market Development Co Ltd (TMDC) to carry out the Tarmway Plaza project, in which ATKC owned a 20% stake and TCC owned an 80% stake;

    5. (5)

       that TCC borrowed US$8.2 million from First Property, of which US$5.1 million was invested in the construction of Tarmway Plaza, which was completed by the end of 1997;

    6. (6)

       that First Property paid the salary of Ms Christina Chan, who was the employee responsible for the management, marketing and security of Tarmway Plaza until 2001, following which Major Thant assumed responsibility for security;

    7. (7)

       that First Property therefore had possession of Tarmway Plaza “by way of Miss Christina Chan and [Major Thant] since the completion of construction of Tarmway Plaza”;

    8. (8)

       that, on 20 February 2004, locks on the premises were changed; and

    9. (9)

       that, on 22 February 2004, the security team was terminated by Mr Nyunt.

18. [47]

    The above conduct was said to amount to the removal of First Property from Tarmway Plaza without its consent and “otherwise than by due course of law”.

19. [48]

    At the time of the hearing before the primary judge, the Tarmway Possession Proceedings had not yet been determined. Plainly enough, they also had not been determined prior to delivery of the Singapore judgments.

20. [49]

    On 25 October 2017, several weeks after the hearing of the set aside application by the primary judge, judgment in the Tarmway Possession Proceedings was entered in favour of Mr Nyunt in the Yangon Eastern District Court (the October 2017 judgment). On 12 January 2018, Mr Nyunt filed a Notice of Motion seeking leave to re-open the set aside application to adduce evidence of the October 2017 judgment. On 30 April 2018, the primary judge refused leave to do so, giving her reasons for that refusal in the primary judgment: PJ [179]–[191]. That procedural ruling is challenged by ground 4(f) of Mr Nyunt’s Amended Notice of Appeal.

21. [50]

    Before the primary judge, there was some dispute about the correct translation of an important part of the October 2017 judgment: PJ [184]. After summarising the pleadings, the October 2017 judgment identified five “issues of fact” in the proceedings. The translation dispute concerned the first of these issues, and was explained by the primary judge as follows at PJ [184]:

22. [51]

    However, on appeal, senior counsel for Mr Nyunt indicated that he was content to proceed on the basis of First Property’s proposed translation, whilst reserving the right to have the translation dispute determined at a later stage if it became a “live issue”.

23. [52]

    While each party provided its own translation, the remainder of the October 2017 judgment was not the subject of any significant translation dispute. It was common ground that the judgment contained findings to the following effect:

    1. (1)

       Ms Chan, who had possession of Tarmway Plaza, was an employee of TMDC rather than of First Property;

    2. (2)

       as a result, TMDC, and not First Property, had legal possession of Tarmway Plaza;

    3. (3)

       the Tarmway Plaza security team was removed by Mr Nyunt and another defendant (Mr U Soe Aung) acting in their capacities as directors of TMDC, and not in their personal capacities; and

    4. (4)

       as TMDC always had possession of Tarmway Plaza, it could not be argued that it was not “by due course of law” for TMDC to remove the security team around 22 February 2004.

24. [53]

    For completeness, it should be noted that on 27 December 2019, the Yangon Regional High Court dismissed what was referred to as a “revision application” brought by First Property in relation to the October 2017 judgment. A notarised English translation of the reasons for that dismissal formed part of the body of fresh evidence sought to be adduced by First Property on appeal. That application is considered later in these reasons.

25. [54]

    It is convenient, before turning to the application to lead fresh evidence in this appeal and the other substantive grounds of appeal, first to deal with Mr Nyunt’s challenge to the primary judge’s refusal, on 30 April 2018, to grant leave to re-open the set aside application proceedings to allow Mr Nyunt to adduce evidence of the October 2017 judgment.

Primary judge did not err in rejecting application to lead new evidence (grounds 4(f) and 5(d))

1. [55]

   As I have explained at [49] above, the primary judge gave her reasons for refusing leave to re-open the set aside application as part of her Honour’s reasons for dismissing the Notice of Motion to set aside the registration of the Singapore judgments.

2. [56]

   To supply the necessary context, it should be noted that argument on the set aside application had taken place over four days in October 2017 with the application to re-open being filed in January 2018. After noting that the relevant question in determining whether to grant leave was “whether the interests of justice require that leave be granted or refused” (PJ [180]), her Honour set out the reasons for refusing leave, which may be summarised briefly as follows:

   1. (1)

      if leave were granted, Mr Nyunt had indicated that he would seek leave to amend the set aside application in order to add a ground that the enforcement of the Singapore judgments would be contrary to public policy on grounds of illegality. The consideration of this ground, if allowed, would have required a further hearing, including a further round of expert evidence as to foreign law (PJ [183]);

   2. (2)

      the parties were in dispute as to the translation of an important part of the October 2017 judgment (see [50] above);

   3. (3)

      if leave were granted, First Property would contend that the October 2017 judgment did not include any finding in relation to whether funds were advanced by First Property to Mr Nyunt. Advancing this contention would have required First Property to call its attorney in Myanmar, who would have to give evidence through a translator (PJ [185]);

   4. (4)

      the grant of leave would have considerably expanded the scope of the grounds relied upon by Mr Nyunt in support of the set aside application (PJ [186]);

   5. (5)

      her Honour accepted First Property’s submission that the October 2017 judgment could not provide any support for setting aside registration of the Singapore judgments pursuant to s 7(2)(a)(xi) of the FJA (that is, on public policy grounds) (PJ [187]);

   6. (6)

      her Honour also accepted First Property’s submission that the October 2017 judgment could not be relied upon under s 7(2)(b) of the FJA, as that subsection operates only if the contended “final and conclusive judgment” was delivered before the judgment(s) that have been registered (whereas the October 2017 judgment was delivered after the Singapore judgments were registered on 2 March 2017) (PJ [188]);

   7. (7)

      the application for leave to re-open the set aside application was brought “to lay the path for a further invitation to embark upon a review of the merits of the Singapore proceedings and the Myanmar proceedings” (PJ [190]). That is, if leave were granted, it would have been necessary to determine whether there was any conflict between the October 2017 judgment and the Singapore judgments, which would have required a fresh consideration of their competing merits; and

   8. (8)

      to grant leave would have incurred further delays and costs, which her Honour considered a “powerful factor against granting leave” (PJ [191]).

3. [57]

   The decision whether to permit Mr Nyunt to introduce fresh evidence (after four days of hearing in October 2017 with judgment then having been reserved) was one that involved the exercise of a judicial discretion on a matter of practice and procedure. Decisions of this kind are difficult to challenge, for sound reasons: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]–[5]; House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.

4. [58]

   The primary judge’s reasons for exercising that discretion in the way she did were not only well open to her but were sound in all the circumstances. That was not least the case given that the Singapore judgments, the registration of which was being sought to be set aside, were delivered in 2016, with registration under the FJA having occurred on 2 March 2017: see [11] above. The primary judge’s reasoning on this aspect of the case was also entirely consistent with s 56 of the Civil Procedure Act 2005 (NSW).

5. [59]

   One fundamental difficulty with the attempt to challenge this aspect of the primary judgment is that the use that was sought to be made of the October 2017 judgment was to found an argument that it gave rise to a res judicata or issue estoppels. How that could be so in circumstances where that judgment post-dated the delivery of the Singapore judgments, as well as their registration in Australia, was not explained. In this context, it might also be noted that s 7(2)(b) of the FJA, which was referred to in ground 5 (see [17] above), operates only if the allegedly “final and conclusive judgment” was given before the judgment that has been registered.

Fresh evidence on appeal

1. [60]

   As earlier noted, Mr Nyunt sought to introduce a large body of fresh evidence into the appeal. First Property indicated that if some of this evidence was introduced, it would seek to lead further evidence to “complete the picture” or to place the evidence Mr Nyunt sought to lead into its proper or complete context.

2. [61]

   The fresh evidence sought to be led should be differentiated. First, there was no opposition to the tendering into evidence of the 2020 and 2021 Singaporean judgments which have already been referred to at [15]–[16] above, namely the application before Lee Ming J to set aside both the Singapore judgments and service of the proceedings which led to those judgments, together with the largely unsuccessful appeal from Lee Ming J’s judgment to the Singapore Court of Appeal.

3. [62]

   The balance of the fresh evidence sought to be led fell, however, into a different category. It related to the further set of proceedings that Mr Nyunt had commenced in Myanmar in January 2018, in which he sought damages of US$75.9 million against First Property. These are the proceedings which have been referred to at [27] above.

4. [63]

   This evidence was principally sought to be adduced not in aid of Mr Nyunt’s appeal to this Court but in aid of a foreshadowed application to stay enforcement of the registered judgment in the event that Mr Nyunt was otherwise unsuccessful in this appeal pending resolution of his claim for damages in Myanmar, which he contended would be an off-setting claim.

5. [64]

   I would refuse the admission of this body of material as it is not relevant to the appeal.

6. [65]

   If a stay of enforcement is still sought after delivery of these reasons, that is an application which should be made formally to a judge of the Common Law Division of the Court. It is not a matter appropriately to be dealt with by three judges of this Court, not least because of the extensive nature of the additional evidence sought to be tendered in relation to the foreshadowed stay application.

Foreign Judgments Act and the substantive grounds of appeal

1. [66]

   These reasons now turn to the various substantive grounds of appeal. The central statutory provision that falls for consideration in that context is s 7 of the FJA, which provides as follows:

Jurisdiction “in the international sense” (ground 2)

1. [67]

   As noted above, ground 2 was to the effect that the Singapore High Court lacked jurisdiction “in the international sense”, that is to say within the meaning of s 7(3) of the FJA, because the subject matter of the dispute had already been submitted to the courts of Myanmar upon First Property’s election and, in any event, there was no submission to the jurisdiction of the Singapore High Court in respect of the full breadth of the claims pleaded at paragraphs [36]–[39] of the Amended Statement of Claim in Singapore.

2. [68]

   The allegations in those paragraphs were summarised at PJ [69] as follows:

3. [69]

   In terms of s 7 of the FJA, the question is whether the Singapore courts, being the “courts of the country of the original court”, had “no jurisdiction in the circumstances of the case” within the meaning of s 7(2)(a)(iv). Section 7(3) of the FJA sets out when the courts of the original country “are taken to have had jurisdiction” for the purposes of s 7(2)(a)(iv).

4. [70]

   Section 7(3)(a)(iii) of the FJA provides that the courts of the country of the original court are taken to have had jurisdiction “if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court” (emphasis added). This subsection of the FJA posed a particular obstacle for Mr Nyunt in his attempt to demonstrate that the courts of Singapore did not have jurisdiction for the purposes of s 7(2)(a)(iv). This was because cl 14 of the JVA relevantly provided that Mr Nyunt, as one of the parties to the JVA, submitted to the jurisdiction of the Singapore courts.

5. [71]

   The essence of Mr Nyunt’s argument on what I have described earlier in these reasons as the “election issue” (see [20] above) is that First Property, by seeking relief against Mr Nyunt in Myanmar in each of the Burma Companies Act Proceedings, the Natmauk Lane Declaration Proceedings and the Tarmway Possession Proceedings, had in some way lost its right to rely on cl 14 of the JVA for the purposes of resisting Mr Nyunt’s argument that the Singapore courts lacked jurisdiction over him.

6. [72]

   The argument was principally put in terms of First Property having “elected” to sue in Myanmar and thus having in some way lost its ability to sue Mr Nyunt in Singapore, or at least negatived its entitlement to rely upon cl 14 of the JVA for the purposes of contending that the Singapore High Court had jurisdiction in the “international sense” so that its judgments could be registered in New South Wales. The submission, which does not appear to have been made at first instance, was as follows:

7. [73]

   There are a number of difficulties with this argument. First, the focus of the language of s 7(3)(a)(iii) of the FJA is on what the judgment debtor had agreed to prior to the commencement of the original foreign proceedings, and not on any conduct of the judgment creditor. It calls for what should be a straightforward inquiry in the context of a statute the purpose of which is to facilitate the ready enforcement of foreign judgments by registration, subject to application being made to set the registration aside.

8. [74]

   But, secondly, even if it is relevant to consider questions of election and waiver in this context, the argument advanced is unavailing. Whilst it is correct that a party with the benefit of an arbitration clause or an exclusive jurisdiction clause may lose its “right” to insist on arbitration, or to insist that litigation take place exclusively in a particular forum, by acting inconsistently with that contractual right (see British Airways Board v Laker Airways Ltd [1985] AC 58 at 81 per Lord Diplock), such cases are typically considered in terms of waiver: see, for example, BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551; Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl.-Ing Burkhardt GmbH [2001] 1 Qd R 461; ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 (Tridon); Zhang v Shanghai Wool and Jute Textile Co Ltd (2006) 201 FLR 178; [2006] VSCA 133 at [14]; La Donna Pty Ltd v Wolford AG (2005) 194 FLR 26; [2005] VSC 359 at [18]–[24]; Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 (Comandate) at [94]–[96]; Kraft Foods Group Brands LLC v Bega Cheese Ltd (2018) 358 ALR 1; [2018] FCA 549.

9. [75]

   Election involves acting upon inconsistent rights such that one right is lost by reason of the exercise of the other, inconsistent right: Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 641; [1974] HCA 40. Election in this technical sense involves more than simply making a choice where choice exists: see Tridon at [58]; Comandate at [62].

10. [76]

    In any event, whether one speaks of election or waiver, such analysis does not readily transpose to a case such as the present, where what is involved is a clause by which parties agree to submit to the jurisdiction of courts of a particular country. Such a clause, in the nature of a non-exclusive jurisdiction clause, does not implicitly preclude a party bound by it from bringing proceedings elsewhere. Indeed, unlike an exclusive jurisdiction clause, which implicitly involves a promise not to sue other than in the exclusive jurisdiction nominated, non-preclusion is of the essence of a “submission to suit” or non-exclusive jurisdiction clause.

11. [77]

    The effect of such a clause is that, if one party chooses to litigate in the designated forum, the other party will not be able to be heard to object to that forum assuming jurisdiction over him, her or it, although such a party could always seek either a discretionary stay of proceedings on lis alibi pendens grounds if there were proceedings pending between the same parties elsewhere (see, for example, Henry v Henry (1996) 185 CLR 571; [1996] HCA 51) or a stay or summary dismissal of proceedings on grounds of abuse of process if earlier proceedings between the same parties on the same cause of action had been resolved in another forum in a manner inconsistent with the moving party’s claim, and thereby involved the vexatious re-litigation of the same claim in a second court: see, for example, UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45.

12. [78]

    I referred to the nature of a submission to suit clause in Qantas Airways Ltd v Rohrlach (2021) 304 IR 218; [2021] NSWCA 48 at [60] as follows:

13. [79]

    Similarly, in Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104; [2021] NSWCA 219 at [81], I observed that:

14. [80]

    In Shanghai Turbo Enterprises Ltd v Liu Ming [2019] 1 SLR 779 at [82], Prakash JA, drawing on the work of Professor Adrian Briggs (in Agreements on Jurisdiction and Choice of Law, Oxford University Press, 2008 at [4.09]), observed that:

15. [81]

    Professor Briggs, at [4.22] of his authoritative monograph referred to above, elucidates the legal effect of a non-exclusive jurisdiction or “submission to jurisdiction” clause of the kind found in cl 14 of the JVA, in the following passage:

16. [82]

    Mr Nyunt did not identify the two inconsistent “rights” between which First Property was said to have elected. To be sure, First Property had an ability to sue Mr Nyunt in Myanmar (by reason of that country’s rules of jurisdiction) and an ability to sue him in Singapore (because of cl 14 of the JVA), but the ability to sue a person in two or more jurisdictions does not involve an election between contractually conferred rights; rather it will be a function of the rules of personal and subject matter jurisdiction of the courts involved.

17. [83]

    What was once described as “exorbitant” jurisdiction (see, for example, Siskina (Cargo Owners) v Distos Compania Naviera SA [1979] AC 210 at 254–255) means that there will frequently be cases such as the present where the courts of two or more countries have jurisdiction to deal with the same dispute and/or aspects of the same dispute. Indeed, the whole subject of transnational litigation, the doctrines of forum non conveniens and lis alibi pendens, and the rise of anti-suit injunctions, are premised on this reality.

18. [84]

    A party suing in two or more jurisdictions may effectively be put to its election as to which suit to pursue, either on a stay application by a defendant or by one or other court of its own motion, but the commencement and continuation of simultaneous proceedings per se does not necessarily involve any act of election. Something more akin to estoppel by conduct such that it would be unconscionable for the moving party to pursue inconsistent or concurrent relief may be required: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 394; [1997] HCA 33 (CSR v Cigna). There may also be good reasons why similar or overlapping relief is pursued simultaneously in two different jurisdictions, especially if claims affecting property are involved: see [86] below.

19. [85]

    As the majority observed in CSR v Cigna at 393–394, “foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings” (emphasis added). The majority went on to observe that foreign proceedings would be “vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if "complete relief" is available in the local proceedings” (citation omitted). Earlier, at 393, their Honours (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) had noted that:

20. [86]

    What is important to note in the present case is that the Natmauk Lane Declaration Proceedings sought relief under s 53 of the Transfer of Property Act 1882 (Myanmar), which specifically relates to immoveable property. So, also, in the Tarmway Possession Proceedings, relief in the form of an order for possession of Tarmway Plaza was sought under s 9 of the Specific Relief Act 1877 (Myanmar), which also relates specifically to immoveable property. Actions regarding possession of real property typically must be brought in the jurisdiction in which the property is located. This is a principle of long standing: British South Africa Co v Companhia de Moҫambique [1893] AC 602; Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479; [1906] HCA 88. The nature of the proceedings which had been commenced in Myanmar is a further reason why Mr Nyunt’s attempt to invoke notions of election is inapposite.

21. [87]

    It may be accepted that, if a matter has been litigated through to finality in one jurisdiction, that may preclude litigation in another forum (even one that has been contractually, albeit non-exclusively, chosen by the parties), but that will typically be because of the operation of doctrines of res judicata, issue estoppel and/or abuse of process: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [36]. Such doctrines must be deployed with care in a transnational context: see Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44 at [27]–[34], [52]–[57]; Merck Sharp & Dohme Corp (formerly known as Merck & Co Inc) v Merck KGaA (formerly known as E Merck) [2021] 1 SLR 1102 at [40]–[43]; Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418.

22. [88]

    In the present case, the Burma Companies Act Proceedings, which were criminal in nature, were properly not relied upon as giving rise to a res judicata or any issue estoppel; the Natmauk Lane Declaration Proceedings did not result in any decision on the merits; and the Tarmway Possession Proceedings were not decided until after the delivery of the Singapore judgments (see [48] above). Dr Ward SC, who appeared for Mr Nyunt, put the matter frankly when he said of the Tarmway Possession Proceedings that “[t]he problem is we didn't win until [October] 2017.” By that time, the set aside application before the primary judge had been heard but not determined, as has been noted above at [49] and, in any event, the outcome of the Tarmway Possession Proceedings post-dated the entry of the Singapore judgments in 2016.

23. [89]

    An argument based on election, similar to that pursued in the present case, was advanced but rejected by the Queensland Court of Appeal in Marks v ANZ Banking Group Limited [2014] QCA 102 (Marks). That case also involved an application to set aside registration of a Singapore judgment pursuant to s 7(2)(a)(iv) of the FJA on the basis that Singapore courts lacked jurisdiction over the matter. The Singapore judgment in Marks was based upon a claim under a guarantee, cl 22 of which provided that “[t]he Guarantor irrevocably submits to the non-exclusive jurisdiction of the courts of Singapore or of any other court as the Bank may elect”.

24. [90]

    It was contended that the commencement of possession proceedings in Queensland, under a mortgage securing the guaranteed debt, constituted an election by the Bank which, “upon the proper construction of clause 22, had the consequential effect of depriving the courts of Singapore of jurisdiction in relation to enforcement of the guarantee”: Marks at [32]. In rejecting this argument, Gotterson JA observed:

25. [91]

    For all of the foregoing reasons, Mr Nyunt’s argument based on election and waiver, designed to foreclose First Property’s reliance upon cl 14 of the JVA in order to demonstrate that the courts of Singapore had jurisdiction for the purposes of s 7 of the FJA, must be rejected.

26. [92]

    The scope issue, which was also identified at [20] above, arises in the context of a consideration of s 7(3)(a)(iii) of the FJA which provides that “the courts of the country of the original court are taken to have had jurisdiction if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court” (emphasis added). It is important to note that the point of reference is “the subject matter of the proceedings” rather than the legal nature of the claims in the original court.

27. [93]

    The primary judge held that First Property’s claim of breach of fiduciary duty in the Singapore proceedings fell within the scope of cl 14 of the JVA, referring to and accepting in this context (PJ [73]–[74]) the expert evidence of Singapore law given by Mr Toh Kian Sing SC, who concluded that:

28. [94]

    First Property referred to the fact that, in dismissing the application brought by Mr Nyunt in Singapore to set aside the Singapore judgments (including to set aside service of the Statement of Claim in the proceedings that led to those judgments — an application that was made some four years after the Singapore assessment judgment had been delivered; see [15]–[16] above), it was held that “[a]lthough the plaintiff’s claims against the defendant were for breaches of trust and fiduciary duties, it was clear that the trust and fiduciary duties were inextricably linked to the JVA, Debenture and Loan Agreement”: [2020] SGHC 276 at [93]. When that judgment went on appeal, the Singapore Court of Appeal held that “there was no reason to interfere with the Judge's holding that there was a good arguable case that the respondent's claims were within O 11 r 1(r) of the ROC by virtue of the non-exclusive jurisdiction clause in the JVA”: [2021] SGCA 73 at [42].

29. [95]

    Clause 14 of the JVA contains an ellipsis. By that clause, both parties submitted to the jurisdiction of the courts of Singapore but the clause was silent in respect of the scope or extent of that submission. The clause did not adopt the form frequently seen in commercial contracts by which parties agree to submit to the (exclusive or non-exclusive) jurisdiction of a particular court or courts in relation to all disputes arising out of or relating to the contract in question or some variation of the words emphasised: cf Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82 at appendix A.

30. [96]

    The unchecked trend in modern authority has been to interpret the scope of jurisdiction clauses broadly, on the footing that commercial parties to an agreement should be taken to have intended that all aspects of a dispute between them in respect of the broad subject matter of their agreement should be resolved in one forum: see Fiona Trust & Holding Corporation v Privalov [2008] 1 Lloyd’s Rep 254; [2007] UKHL 40; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Comandate at [164]–[165]; Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196

31. [97]

    Questions concerning the construction of a jurisdiction clause, as with an arbitration clause, are informed by considerations of context: Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 at [17]–[18], [44]–[48]. Here, the context was that of an ongoing joint venture. That is a context in which no narrow view should be taken of an elliptical jurisdiction clause such as that embodied in cl 14 of the JVA. The purpose of such a clause was to ensure that there was a venue in which the investor could sue its co-venturer in the event of a subsequent dispute, the nature of which could not necessarily be predicted at the time of entry into the joint venture.

32. [98]

    Where, as in the present case, the parties did not seek to delimit the scope of their submission to jurisdiction by specifying any nexus at all, it may readily be inferred that their intention was to cast the net very broadly indeed. In this vein, First Property submitted that the parties could not have intended that the very broad non-exclusive jurisdiction agreement contained in cl 14 of the JVA would not capture all disputes as to whether Mr Nyunt breached his fiduciary duties owed as a consequence of the joint venture, particularly where such breaches were only alleged to have occurred after entry into the JVA.

33. [99]

    I accept that submission and find no error in the primary judge’s reasoning in this regard.

Sufficient notice (grounds 3 and 4(e))

1. [100]

   By s 7(2)(a)(v) of the FJA, an Australian court must set aside registration of a foreign judgment if it is satisfied that the judgment debtor did not receive notice of the foreign proceedings in sufficient time to enable the judgment debtor to defend the proceedings, and the judgment debtor did not appear.

2. [101]

   The purpose of s 7(2)(a)(v) is tolerably clear from its terms. It is directed to ensuring not only that the judgment debtor has received notice of the foreign proceedings, but that notice has been received in sufficient time so as to enable the judgment debtor to defend the proceedings. Assuming that the foreign court had jurisdiction in the sense contemplated by s 7(3) of the FJA, the registration of a judgment following proceedings in which the judgment debtor did not appear is only required to be set aside under s 7(2)(a)(v) if insufficient notice was given so as to have prevented the judgment debtor from having an opportunity to defend the proceedings. The decisions in Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 at 478–480 per Connolly J, 480–483 per Macrossan J and Re Dooney [1993] 2 Qd R 362 at 364–366 per Ryan J, in respect of analogous legislation, support this analysis.

3. [102]

   On this issue, the primary judge found at PJ [92] that:

4. [103]

   The facts relating to this ground of appeal were not in contention but it is necessary to set them out in some detail to understand the nature and merits of Mr Nyunt’s argument. The basic chronology which led to the Singapore judgments was as follows:

5. [104]

   It was either common ground or established by contemporaneous documents and evidence that Mr Nyunt:

6. [105]

   It is important to record Mr Nyunt’s evidence as to what he did on being served with the Writ of Summons and Statement of Claim in the Singapore proceedings:

7. [106]

   Mr Nyunt’s claim for a negative declaration in Myanmar (the negative declaratory proceedings), which was filed on 16 June 2016, included the following contentions:

8. [107]

   On 30 June 2016, the Yangon Western District Court in Myanmar dismissed the negative declaratory proceedings on the basis that that Court had no jurisdiction to hear the case. Mr Nyunt lodged an appeal on 10 August 2016, which was subsequently dismissed by the Yangon Region High Court on 18 August 2017. What is important to note, however, is that seeking such relief was a sophisticated forensic and tactical reaction to the Singapore proceedings but not participating in those proceedings was not without risk, which must at the least have been known to or appreciated by Mr Nyunt’s legal advisers, if not by Mr Nyunt himself. However, whether it was or not is not ultimately germane to the question posed by s 7(2)(a)(v) of the FJA, namely, whether Mr Nyunt received notice of the Singapore proceedings in sufficient time to enable him to defend those proceedings. The answer to that question is, in my view, unequivocally in the affirmative.

9. [108]

   It should also be noted that there was a period of almost 11 months between entry of the Singapore default judgment and delivery of the Singapore assessment judgment, which occurred on the same day as the hearing. There was also a period of some four months between the dismissal of Mr Nyunt’s negative declaratory proceedings in Myanmar on 30 June 2016 and the Singapore assessment judgment. As Dr Ward, for Mr Nyunt in this Court, candidly accepted in the course of argument:

10. [109]

    An important element of the argument advanced on behalf of Mr Nyunt was that, whereas the orders made by the Singapore High Court on 3 March 2016 required that “[t]he affidavits of evidence-in-chief of all witnesses [were] to be filed and exchanged by 14 April 2016” (emphasis added), First Property never served its affidavits on Mr Nyunt, and that was a deliberate choice.

11. [110]

    Before the primary judge, First Property contended that, in circumstances where Mr Nyunt did not participate in the proceedings or serve any evidence himself, First Property was under no obligation to serve the affidavits of its witnesses. The primary judge dealt with this issue at PJ [99] as follows:

12. [111]

    It should also be noted in this context that, although he maintained that the approach taken by First Property in not serving the affidavits was “deliberate”, “technical” and “improper”, Dr Ward acknowledged in the course of argument on appeal that:

13. [112]

    On appeal, the argument on behalf of Mr Nyunt strayed somewhat from the language of s 7(2)(a)(v) of the FJA. The emphasis in that section is, as noted above at [101], on “notice of [the foreign] proceedings”. The real essence of Mr Nyunt’s argument on appeal was that, notwithstanding that he had notice of the existence of the Singapore proceedings, he lacked notice of the quantum claimed in those proceedings.

14. [113]

    I would reject an argument to the effect that, for the purposes of s 7(2)(a)(v), a party does not have notice of foreign proceedings in circumstances where that party is aware of the fact of the proceedings but does not know of the quantum of the claim that is being sought in those proceedings. This is especially so in circumstances such as the present case where there was a ready means for the party to ascertain that fact.

15. [114]

    It may be accepted that notice within the meaning of s 7(2)(a)(v) of the FJA “requires more than simply informing [the defendant] that proceedings either exist or will exist”: Maschmann v Wenzel [2007] NSWSC 850 at [21]; see also Esso China Inc v Mou [1999] VSC 294. But in the present case, the notice that was given was extensive: see [103]–[104] above. It was scarcely exiguous. And although the Amended Statement of Claim with which Mr Nyunt was served did not, unsurprisingly, include a figure for the unliquidated damages that fell to be assessed, particulars of the loss claimed on account of the alleged breach of fiduciary duty were furnished and gave considerable detail as to how the damages claim was to be formulated. For example, paragraph [42] of the Amended Statement of Claim (which was only slightly modified on amendment from the original Statement of Claim) was as follows:

16. [115]

    No support was given to Mr Nyunt’s argument that “sufficient notice” required notice of the quantum of a claim, as opposed to merely notice of the existence of the proceedings, either by the text of s 7(2)(a)(v) of the FJA or any authority in relation to it. Indeed, there is authority that is inconsistent with the submission. In Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333 (Brockley) at 337, Fox J observed of s 8(1)(a)(iii) of the Foreign Judgments (Reciprocal Enforcement) Ordinance 1954 (ACT), in similar form to s 7(2)(a)(v) of the FJA, that:

17. [116]

    In Marine Services Ltd v Bolton (No 1) (1992) 6 PRNZ 173 and Questnet Ltd v Lane [2008] NZAR 495, Brockley was followed by the High Court of New Zealand, with Barker J in the former case holding that “notice of the proceeding” in s 6(1)(c) of the Reciprocal Enforcement of Judgments Act 1934 (NZ) (expressed in terms analogous to s 7(2)(a)(v) of the FJA) referred to “notice of the commencement of the action as opposed to any interlocutory steps.” In the latter case, at [24], Asher J drew attention to the unreported decision of Lang AsJ in Pickett v Pulman (High Court of New Zealand, 11 June 2004, unreported), where it was held that “a defendant who elects to take no steps to defend a proceeding does not have the luxury of receiving any further warning that judgment is about to be entered”. An appeal from the decision of Asher J was dismissed by the New Zealand Court of Appeal which held, following Brockley, that “[n]otice of a particular step in the proceeding was not necessary”: Lane v Questnet Ltd [2010] NZAR 210; [2009] NZCA 578 at [38].

18. [117]

    First Property submitted with some cogency that:

19. [118]

    Whilst, in the present case, it was common ground that the quantum of the breach of fiduciary claim was not disclosed on the face of the Statement of Claim, and that the affidavit evidence relied upon by First Property was never served on Mr Nyunt, it was also common ground that neither Mr Nyunt nor his counsel sought to ascertain the quantum of damages that was being sought in the Singapore proceedings. That information could have been requested at any time, and it was not suggested that the timetable leading to the damages assessment was particularly or unreasonably rapid so as to preclude Mr Nyunt from preparing his defence or participating in the proceedings at the assessment stage, had he chosen to do so.

20. [119]

    Furthermore, Mr Nyunt could not have thought that the claim in the Singaporean proceeding was insubstantial. The Amended Statement of Claim, with which he was served on 2 September and 11 October 2016, disclosed that First Property’s claim included 95% of the net value of Natmauk Lane and 76% of the net profits derived from the management of Tarmway Plaza: see [114] above.

21. [120]

    The appeal from this aspect of the primary judge’s decision must be dismissed.

22. [121]

    Mr Nyunt also sought, in ground 4(e), to cast this same argument in terms of public policy, contending that the registration of the Singapore judgments should be set aside pursuant to s 7(2)(a)(xi) of the FJA, on the basis that it was contrary to public policy. Ground 4(e) contended that the primary judge erred in failing to conclude that enforcement of the registered judgment would be contrary to public policy by:

23. [122]

    The facts relating to the extent of Mr Nyunt’s notice of the Singapore proceedings which resulted in the New South Wales judgment, registering the Singapore judgments, have been rehearsed at [103]–[104] above.

24. [123]

    It was submitted that there may be cases (of which it was said that the present was an example) where, because of some matter entailing a fundamental denial of substantial justice, it would be contrary to Australian public policy to enforce a foreign judgment such that its registration ought be set aside. The accuracy and breadth of that proposition may be open to doubt, at least insofar as it concerns questions of substantial justice relating to the provision of notice of proceedings, in circumstances where s 7(2)(a)(v) of the FJA makes express provision for the mandatory setting aside of a registered foreign judgment where sufficient notice of the foreign proceedings has not been given to a defendant.

25. [124]

    In LFDB v SM (No 3) [2017] FCA 80 at [102] (LFDB), Griffiths J, in a decision upheld by the Full Court of the Federal Court (LFDB v SM (2017) 256 FCR 218; [2017] FCAFC 178), observed that “[t]here is undoubtedly a high threshold to setting aside the registration of a judgment as contrary to public policy, but I see no sound reason for excluding from that concept a judgment obtained in circumstances involving a gross denial of procedural fairness according to relevant principles in this jurisdiction” (emphasis in original).

26. [125]

    Mr Nyunt placed particular reliance upon the statement by the plurality in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [51] fn 73, citing Adams v Cape Industries PLC [1990] Ch 433 (Adams v Cape) at 496, affirmed in [1990] Ch 503 at 571–572, that “if the foreign judgment is impeachable on the ground of denial of procedural fairness, its enforcement would be contrary to public policy.”

27. [126]

    That footnoted observation by the plurality was not made in the context of the FJA and there is, as noted above, a question whether, in the context of that Act, s 7(2)(a)(v) leaves any room for a broader conception of procedural fairness, relating to the provision of notice, capable of being raised as an aspect of a public policy objection under s 7(2)(a)(xi) of the FJA, given that the former subsection expressly addresses the issue of notice as an aspect of procedural fairness and, at common law, “[domestic] courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against [domestic] views of substantial justice”: Pemberton v Hughes [1899] 1 Ch 781 at 790–791. That passage was cited by Griffiths J at [105] of LFDB in considering the notion of gross denial of procedural fairness.

28. [127]

    It should be noted that LFDB involved an application to set aside the registration of foreign judgments under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth), which does not include a subsection analogous to s 7(2)(a)(v) of the FJA. It should also be noted that Adams v Cape involved an attempt to enforce a United States federal judgment in the United Kingdom under common law principles concerning the recognition and enforcement of judgments, there being no treaty for the enforcement of judgments of United States federal courts in the United Kingdom, just as there is no such treaty in force between Australia and the United States (as a consequence of which judgments of that country are not registrable in Australia under the FJA).

29. [128]

    Dr Ward, for Mr Nyunt, in turn sought to derive support for his argument by reference to the facts of Adams v Cape. As noted above, that case involved an attempt to enforce, in the United Kingdom, a judgment against the defendants for many millions of dollars in damages which had been entered in class action proceedings in the United States Federal District Court.

30. [129]

    At first instance, Scott J had held that, at common law, recognition and enforcement of a foreign judgment could be refused if the judgment was based upon a procedure which “offends against English principles of substantial justice”: at 498. What Scott J held to be offensive to English principles of substantial justice in that case was the procedure by which damages had been assessed in the United States (at 500):

31. [130]

    On appeal, the Court confessed to having experienced “difficulty” in considering the matter (at 564) but ultimately agreed with Scott J that “the total award was not in any real sense based upon an objective assessment by the [US] judge upon evidence as to the condition of [the] plaintiffs”: at 565. The Court continued at 566–567:

32. [131]

    Adams v Cape is a very different case to the present, turned very much on its own facts and, as already indicated, was a decision concerning the recognition and enforcement of a judgment at common law. It is also a decision that should be treated with some caution in Australia: see M Davies, A S Bell, P L G Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (10th ed, LexisNexis Butterworths, 2020) at [40.88]; see also Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV (No 3) (2013) 300 ALR 741; [2013] FCA 85 at [45].

33. [132]

    Mr Nyunt also referred to this Court’s decision in Boele v Norsemeter Holding AS [2002] NSWCA 363 in support of his argument. However, the requirements of natural or substantial justice referred to in that case at [24] included, first, the opportunity to present a case before an impartial tribunal. and secondly, being given due notice of the proceedings. Giles JA (with whom Handley JA and Beazley JA each agreed) found that there was an arguable case that Mr Boele was not afforded natural justice in relation to an appeal to the Borgarting Court of Appeals in Norway, in circumstances where he had terminated the retainer of his solicitor, despite which the solicitor continued to represent him in the appeal proceedings (of which he was unaware). By way of contrast, in the present case, Mr Nyunt had due notice of the Singapore proceedings and was not deprived of the opportunity to present his case before an impartial tribunal. Rather, he simply did not avail himself of that opportunity. Indeed, as the primary judge held in a finding that was not challenged, he deliberately decided not to do so: PJ [92], [111], [171].

34. [133]

    Whether or not the public policy basis for setting aside registration of a foreign judgment may extend to the denial of substantial justice in exceptional circumstances under the FJA, the facts of the present matter did not involve any denial of substantial justice or gross denial of procedural fairness so as to make the domestic registration of the Singapore judgments contrary to Australian public policy.

35. [134]

    For these reasons, Mr Nyunt’s arguments in relation to the sufficient notice ground, whether under s 7(2)(a)(v) or expressed in terms of public policy, must fail.

Public policy ground (grounds 4(a)–(d) and grounds 5(a)–(c)

1. [135]

   Mr Nyunt made a number of other arguments under the rubric of public policy. Both under common law principles in relation to the recognition and enforcement of foreign judgments and under the FJA, “public policy” as a basis for refusing recognition or setting aside registration has a narrow compass, just as it does in the context of the enforcement of international arbitral awards under the International Arbitration Act 1974 (Cth). That is so for at least two reasons.

2. [136]

   First, it is hornbook law that a court asked to recognise or enforce a foreign judgment will not examine the merits of the foreign judgment (see [126] above), and that principle is not to be circumvented or undermined through the invocation of broad conceptions of public policy. Secondly, in an increasingly global world, it is in fact a positive aspect of Australian public policy that foreign judgments and arbitral awards will be enforced as part of a reciprocal practice: Talacko v Bennett (2017) 260 CLR 124; [2017] HCA 15 at [32]. The FJA is also based on “considerations of justice, convenience, greater certainty in international transactions and comity between nations”: Commonwealth House of Representatives, Parliamentary Debates (Hansard), 29 May 1991 at 4218 (Second Reading Speech, Foreign Judgments Bill 1991 (Cth)). A broad conception of public policy in this context would be apt to frustrate these desirable goals.

3. [137]

   In Kok v Resorts World at Sentosa Pte Ltd (2017) 323 FLR 95; [2017] WASCA 150, Martin CJ reviewed the principles governing the setting aside of the registration of a foreign judgment on the ground of public policy. At [14]–[18], his Honour said the following:

4. [138]

   In Jenton Overseas Investment Pte Ltd v Townsing (2008) 21 VR 241; [2008] VSC 470 at [20], Whelan J noted that a review of the authorities revealed that “the courts are slow to invoke public policy as a ground for refusing recognition or enforcement of a foreign judgment”; that there were “few instances in which a foreign judgment has not been recognised or enforced on this ground”; and that this was for “good reasons”. One such reason was the importance of respecting and recognising other sovereign states’ institutions, which is an aspect of comity. His Honour observed that that was “especially so when acting under the Foreign Judgments Act where the registration and enforcement procedures apply on the basis that there is ‘substantial reciprocity of treatment’ for Australian judgments in the foreign forum”: at [20].

5. [139]

   Whelan J accepted that “substantial injustice, either because of the existence of a repugnant law or because of a repugnant application of the law in a particular case, may invoke the public policy ground”: at [20]. His Honour went on to observe, however, that:

6. [140]

   Mr Nyunt also contended in appeal grounds 5(a)–(c) that the various Myanmar judgments had resulted in “final and conclusive judgments” within the meaning of s 7(2)(b) of the FJA. There was a close overlap between these grounds and some of the public policy arguments advanced, which are now considered.

7. [141]

   Mr Nyunt contended that the registration of the Singapore judgments was contrary to public policy because “the essential factual substratum of the case had been submitted, by [First Property], to the Courts of Myanmar and was res judicata before judgment in Singapore, or now is res judicata pursuant to the ‘October 2017 Judgment’” or, alternatively, that “the primary issues were determined, or ought to have been litigated in Myanmar”.

8. [142]

   Dealing first with the res judicata component of this submission, which overlaps with the argument based on s 7(2)(b) of the FJA, to the extent that this ground of appeal relies upon the October 2017 judgment, it can be put aside immediately, as evidence of that decision was not admitted before the primary judge and her Honour did not err in rejecting its admission for the reasons given earlier in this judgment at [55]–[59]. In any event, it is difficult to understand how issues determined by a judgment (whether default or not) could be rendered res judicata by a subsequent judgment (whether of a domestic or foreign court).

9. [143]

   Counsel for Mr Nyunt did not rely upon the Burma Companies Act Proceedings as generating a res judicata, eschewing any reliance on such an argument in oral address. Nor did the Natmauk Lane Declaration Proceedings generate any res judicata, as they were dismissed on purely procedural grounds (see [42] and [88] above), such that there was no “final judicial decision of a question between the parties”: Rogers v The Queen (1994) 181 CLR 251 at 262; [1994] HCA 42. In this context, it should be noted that s 7(2)(b) of the FJA does not mandate the setting aside of the registration of a foreign judgment. In contrast to s 7(2)(a), s 7(2)(b) provides that a court “may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had before the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter” (emphasis added). Judgment in the Natmauk Lane Declaration Proceedings was not “final and conclusive” as a matter of Australian law and did not involve “the matter in dispute” in the Singapore judgment.

10. [144]

    Putting matters of res judicata aside, the balance of the arguments bore some resemblance, albeit under the public policy ground, to Mr Nyunt’s election argument, considered and rejected at [71]–[91] above. Grounds 4(b), (c) and (d) each employed the language of “abuse of process” and asserted that the primary judge erred in failing to conclude that enforcement of the registered judgments would be contrary to public policy by:

11. [145]

    To the extent that these grounds incorporate notions of abuse of process, the abuse referred to is not of the process of an Australian court but, rather, is an abuse of process of the court whose judgment has been registered, namely the Singapore High Court. The argument seems to reduce to a contention that it is contrary to Australian public policy to register and enforce a judgment of a foreign court that has resulted from an abuse of that court’s process.

12. [146]

    This proposition is problematic for any number of reasons.

13. [147]

    First, whether a judgment has been procured as a result of the processes of a foreign court having been abused in some way is pre-eminently a matter for the foreign court. Secondly, what may be an abuse of process in one jurisdiction may not be regarded as an abuse of process in another jurisdiction. Thirdly, to the extent that the various abuses of process asserted in grounds 4(b)–(d) are said to have arisen from the fact of proceedings having been commenced in Myanmar prior to proceedings in Singapore, that one party may sue the same defendant simultaneously in more than one jurisdiction does not necessarily amount to an abuse of process, even as a matter of Australian law. It may, for example, depend upon the remedies available in different jurisdictions (see CSR v Cigna at 393), the nature of the relief being sought in the other jurisdiction and a host of other considerations of the kind identified by the High Court in Henry v Henry at 589–591.

14. [148]

    To the extent that there is said to have been an abuse of process in a foreign jurisdiction (i.e. Singapore) and that abuse is said to have arisen by reason of an earlier judgment in a different foreign forum (i.e. Myanmar), whether there has in fact been an abuse of process will be a matter of evidence and depend, in part at least, upon the law relating to issue estoppel or res judicata in the first foreign jurisdiction, in light of that jurisdiction’s assessment of the facts in the second forum. In this context, there was no evidence that the application for default judgment in Singapore was an abuse of process according to Singapore law and, to the extent that Mr Nyunt has subsequently sought to challenge the propriety of the Singapore proceedings in the Singapore High Court by reference to similar arguments as have been advanced before this Court, he has been unsuccessful in so doing: see [15]–[16], [18], [61] and [110] above.

15. [149]

    More obviously, if Mr Nyunt wished to contend that the proceedings in Singapore were an abuse of process, he could have sought a stay of those proceedings on abuse of process grounds in Singapore prior to the Singapore default judgment being given, just as he could have sought a stay of those proceedings on forum non conveniens or lis alibi pendens grounds. He did neither.

16. [150]

    Ground 4(b) also approaches an attempt to resist enforcement by reference to a view of the merits (including the legal merits) of the Singapore default judgment. Such an approach is anathema to common law principles relating to the recognition and enforcement of foreign judgments, and nothing in the FJA invites the use of public policy to permit or open up such merits review. That an application to set aside the registration of a foreign judgment is not an exercise in the review of the merits of that foreign judgment was a point properly emphasised by the primary judge at PJ [9]–[10], [38], [124], [173] and [190].

Stay application

1. [151]

   As earlier noted, Mr Nyunt sought to lead fresh evidence in support of an application to stay the enforcement of the registered judgment. The stay application is advanced on the basis that there may be some set-off by way of damages to be awarded in the proceedings evidently underway in Myanmar (see [27] above), with reliance being placed upon authorities such as State Bank of Victoria v Parry [1989] WAR 240 and XPlore Technologies Corporation of America v Tough Corp Pty Ltd [2008] NSWSC 1267.

2. [152]

   Any application for a stay of the enforcement of the registered judgment should be made to a judge of the Common Law Division of the Court.

Orders

1. [153]

   The following orders should be made:

   1. (1)

      Vary order 1 made on 2 March 2017 by reducing the judgment in 1(a) by US$585,143.67 and SG$3,000 and reducing the judgment for interest in 1(b) by US$54,022.51 and SG$213.40, such that order 1 as varied reads as follows:

   2. (2)

      Amend order 2 made on 2 March 2017 by replacing the words “Singapore Judgments” with “Singapore Judgment”.

   3. (3)

      Otherwise dismiss the appeal with costs.

2. [154]

   MACFARLAN JA: I agree with Bell CJ.

3. [155]

   GLEESON JA: I agree with Bell CJ.