PB Neumatico Partnership Claimant v Christian Hoebrath First Defendant Judith Jo-Anne Hoebrath nee Lavia Second Defendant National Commercial Bank Third Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Thom, J
• Judgment Date: 26 July 2006
• Judgment citation (vLex): [2006] ECSC J0726-4
• Date: 26 July 2006
• Court: High Court (Saint Vincent)
• Docket Number: High Court Civil Claim No. 299 OF 2003

[2006] ECSC J0726-4

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

High Court Civil Claim No. 299 OF 2003

Between:

PB Neumatico Partnership

Claimant

and

Christian Hoebrath

First Defendant

Judith Jo-Anne Hoebrath nee Lavia

Second Defendant

and

National Commercial Bank

Third Defendant

Thom, J

1 This is a claim for damages in the sum of US$86,100.00, E.C. equivalent of $233,925.09.

2 The Claimant in his Statement of Claim filed on the 30^th day of July 2003 alleges that:

• (1) On or about the 12^th day of June 2003 the Claimant obtained a judgment for the sum of US$86,100.00, E.C. equivalent of $233,925.09, against the Defendants herein from the District Court for Criminal Cases in Vienna 1080 Vienna Landferichtestrasse 11, Vienna, Austria.

• (2) The said judgment is final and conclusive and constitutes an enforceable judgment.

• (3) The said proceedings arose from the fraudulent activities of the Defendant against the Claimant and for which the proceeds of the said fraud were transferred and are held at accounts presently at the National Commercial Bank, Bedford Street, St. Vincent and the Grenadines in the names of the Defendants.

• (4) The said judgment sum of US$86,100.00, E.C. equivalent of $233,925.09 constitutes a debt by the Defendants and which is due and owing to the Claimant.

3 On the 16^th day of August 2005 Learned Counsel for the Claimant and Learned Counsel for the First and Second Defendants filed a Statement of Agreed Facts and Issues.

4 The agreed facts were stated as follows:

• (1) On the 12^th day of June 2003 the District Court for Criminal Cases in Vienna ordered the Defendants to pay the sum of US$86,100.00 to PB Neumatico Partnership, 32 Kraki Bukit Crescent, No. 050902 Singapore 416262.

• (2) The said judgment is final and enforceable.

5 The agreed issues were stated as follows:

• (1) Whether or not the judgment is for the enforcement of a foreign penal law.

• (2) Whether or not an order for civil compensation made in a criminal court is enforceable in Saint Vincent and the Grenadines.

• (3) Whether or not the proper steps to enforce a foreign judgment of Austria is to have registered the judgment debt pursuant to statute or to institute an action on the debt.

• (4) Does PB Neumatico have any locus standi to invoke the jurisdiction to bring an action in Saint Vincent and the Grenadines either under statute or common law or the Rules of the Supreme Court 2000?

• (5) Whether or not the judgment on which the Claimant purported to commence their action in Saint Vincent and the Grenadines was a judgment of an inferior court or a superior court which could be enforced without regard to Part 72 of the Rules of the Supreme Court 2000 and the relevant enforcement of Judgment Act.

6 On January 16, 2006 Bruce-Lyle J ordered the First and Second Defendants to file submissions on or before January 18, 2006. No submissions were filed by the Defendants. The matter was heard on June 12, 2006. The Claimant made and the First Defendant made oral submissions.

ISSUES NOS. 1 AND 2:

7 Whether or not the Order is for the enforcement of a foreign penal law and whether or not an order for civil compensation made in a criminal court is enforceable in St. Vincent and the Grenadines.

8 Learned Counsel for the Claimant submitted that the Order is not for the enforcement of a foreign penal law but for the enforcement of civil compensation made in a criminal court and such sum was recoverable in Saint Vincent and the Grenadines as a debt. Learned Counsel referred the court toConflict of Laws 5^th Edition by R.H. Graveson pp. 557–558 and the case of Raulinv Fischer [191112 KB p 93 at p. 98 where Hamilton J referred to a passage from Wisconsin v Pelican Insurance Co. which outlined the test to determine whether an action is penal in the following manner:

"The rule that the Courts of no country execute the law of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of Statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties" and added "Their Lordships do not hesitate to accept exposition of the law which in their opinion discloses the proper test for ascertaining whether an action is penal within the meaning of the rule. A proceeding in order to come within the scope of the rule must be in the nature of a suit in favor of the State whose Law has been infringed. I have therefore to inquire first of all whether this judgment insofar as it concerns the present plaintiff is one for the satisfaction of a private wrong or for the punishment of an infraction of a public law, and secondly, whether, if it be as regards him only for the satisfactionof a private wrong it is one which can be separated from the rest of the judgment in spite of the fact that a considerable part of it relates to purely criminal proceedings."

9 Apply the test outlined by Hamilton J to the present case, was the judgment one for satisfaction of a private wrong or for the punishment of an infraction of public law and whether if it...