Preview
EDWARD J. WRIGHT, JR., ESQ. (109469)
MARTENSEN «+ WRIGHT PC
One Capitol Mall, Suite 670 ELECTRONICALLY
Sacramento, California 95814 F I L E D
Telephone: (916) 448-9088 Superior Court of California,
County of San Francisco
Facsimile: (916) 448-9084
07/16/2020
Attorneys for Plaintiff Clerk of the Court
BY: BOWMAN LIU
ROX AUSTRALIA VF PTY LTD Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
10
12 ROX AUSTRALIA VF PTY LTD, an Case No; CGC-20-584780
13 Australian corporation,
14
FIRST AMENDED COMPLAINT FOR
RECOGNITION OF FOREIGN
15 MONEY JUDGMENT
16
17 SWYFT INC., a Delaware
18 corporation,
19 Defendant
20
21 Plaintiff ROX Australia VF Pty Ltd ("ROX" or "Plaintiff" ) files this First
22 Amended Complaint and alleges and complains as follows:
23 JURISDICTION AND VENUE
24 1. This is an action for recognition of a foreign final judgment pursuant to
25 the Uniform Foreign Country Money Judgments Recognition Act ("UFCMJRA"),
26 California Code Civ. Proc. Section 1713, et seq., and pursuant to principles of
27
— I—
FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT
international comity. This Court has jurisdiction to hear the subject matter of the
complaint,
2. Plaintiff ROX is, and at all times herein mentioned was, incorporated
under the laws of Australia (Australian Company Number 610 801 306) and has its
principal place of business at 11 Loombah Avenue, East Lindfield, NSW 2070,
Australia.
3. Plaintiff is informed and believes and thereon alleges that Defendant
Swyft Inc. ("Swyft" or "Defendant" ) is, and at all times herein mentioned was,
incorporated under the laws of the State of Delaware, and authorized to do, and doing
10 business from its principal place of business at 140 Geary Street, Floor 7, San Francisco,
California 94108.
12 4. This Court has jurisdiction over the Defendant, as the Defendant is
13 incorporated under the laws of California.
14 5. Venue is proper in this Court pursuant to California Code Civ. Proc.
Defendant has
'IRST
15 Section 395.5 because its principal place of business in the County of
16 San Francisco.
17 CLAIM FOR RELIEF
18 RECOGNITION OF FOREIGN JUDGMENT UNDER THE UFCMJRA
19 6. Plaintiff incorporates paragraphs 1 through 5 as though fully set forth
20 herein,
21 7. On or about November 22, 2018, ROX initiated a civil action in the
22 Supreme Court of NSW, Australia ("NSW Supreme Court" ) against Swyft, alleging a
23 cause of action for breach of a Deed of Settlement (breach of contract) and seeking
24 money damages (the "Australian Action" ). Swyft, as the defendant in the Australian
25 l
Action, appeared before the NSW Supreme Court and voluntarily submitted to its
26 jurisdiction.
— 2—
FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT
8. On or about January 31, 2019, Swyft filed a Notice of Appearance in the
Australian Action.
9. The NSW Supreme Court had subject matter jurisdiction over the case
and on or about February 26, 2019, held a hearing on the merits, The hearing included
submissions of evidence and written testimony.
6 10. Based on the evidence submitted, the NSW Supreme Court rendered
7 judgment on February 26, 2019, awarding judgment in favor of ROX and against Swyft
in the sum of AUD $ 265,791.19.
11. A true and correct copy of the Australian Judgment from the NSW
10 Supreme Court is attached hereto as Exhibit A and incorporated herein by this
reference.
12 12. Under the laws of Australia, the judgment rendered by the NSW Supreme
13 Court is final, conclusive and enforceable in Australia.
13. Legal interest on the judgment amount accrues pursuant to Australian
15 Law pursuant to Rule 36.7 of the Uniform Civil Procedure Rules 2005. From February
16 26, 2019 to December 31, 2019, the applicable interest rate was 7.25% per annum; from
17 January 1, 2020 the rate was, and still is as of the date of filing, 6.75% per annum.
18, 14. On March 1, 2019, ROX received a payment from Swyft in the amount of
19 AUD $ 55,000 in partial satisfaction of judgment; On July 26, 2019, ROX received a
20 further payment from Swyft in the amount of $ 90,107. As of July 26, 2019, a balance of
21 AUD $ 120,684.19 remained due and payable. As of the date of filing, interest has
22 accrued as follows:
23 (a) AUD $ 158.37 accrued on the principal sum of AUD $ 265,791.19
24 from February 26, 2019 to March 1, 2019 at the rate of 7.25% per
25 annum;
26,
27
— 3—
FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT
(b) AUD $ 6,113.02 accrued on the principal sum of AUD $ 210,791.19
from March 2, 2019 to July 26, 2019 at the rate of 7.25% per annum;
(c) AUD $ 4,002.99 accrued on the principal sum of AUD $ 120,684.19
from July 27, 2019 to December 31, 2019 at the rate of 7.25% per
annum;
6 (d) AUD $ 4,038.11 accrued on the principal sum of AUD $ 120,684.19
from January 1, 2020 to July 1, 2020 at the rate of 6.75% per annum;
(e) Interest shall continue to accrue at the Australian legal rate through
entry of judgment by this Court, at which time, interest will begin
10 to accrue at the legal rate applied under the laws of the State of
California,
12 15. As of the date of filing, the total judgment, including principal and
13 accrued interest, amounts to AUD $ 134,996.68. The Federal Reserve exchange rate on
14 the day of the judgment was .7182 AUD/USD. In United States Dollars, the total
15 judgment equals USD $ 96,954.61 (the "Australian Judgment" ).
16 16. The Australian Judgment gives rise to an award of court costs and
17 attorneys'ees incurred as costs of enforcement, as provided for at section 127 of the
18 Civil Procedure Act 2005 (NSW) and under section 107 of the Service and Execution of
19 Process Act 1992 (Cth). ROX incurred legal fees through Australian counsel to enforce
20 the Australian Judgment in the amount of AUD $ 33,184. The Federal Reserve
21 exchange rate on the day of the judgment was .7182 AUD/USD. In United States
22 Dollars, the recoverable costs incurred in Australia equal USD $ 23,832.74. Plaintiff has
23 incurred, and will continue to incur, costs and attorneys'ees to enforce the Australian
24 Judgment in the United States, which costs and fees are recoverable under the above
25 cited statutory provisions, and which will be demanded according to proof at the time
26 of entry of judgment in California.
27
— 4—
FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT
17. In light of the foregoing, the Australian Judgment is subject to full
enforcement in accordance with its terms by ROX against Swyft and is entitled to
recognition and enforcement by this Court in the same manner as a judgment rendered
in a sister state.
5 SECOND CLAIM FOR RELIEF
6 RECOGNITION OF JUDGMENT PURSUANT TO INTERNATIONAL COMITY
18, Plaintiff incorporates paragraphs 1 through 17 as though fully set forth
herein.
19. The Court has authority to recognize foreign judgments even in
circumstances where the judgments are not within the scope of the UFCMJRA. Cal.
Code Civ. Proc. g 1723.
12 20. The Australian judgment is entitled to recognition and enforcement
13 pursuant to traditional principles of international comity as understood and applied
14 by the courts of the United States and the State of California.
15 21. The Australian judgment gives rise to an award of court costs and
16 attorneys'ees incurred as costs of enforcement, as provided for at section 127 of the
17 Civil Procedure Act 2005 (NSW) and under section 107 of the Service and Execution of
18 Process Act 1992 (Cth). ROX incurred legal fees through Australian counsel to enforce
19 the Australian judgment in the amount of AUD $33,184. The Federal Reserve exchange
20 rate on the day of the judgment was .7182 AUD/USD. In United States Dollars, the
21 recoverable costs incurred in Australia equal USD $ 23,832.74. Plaintiff has incurred,
22 and will continue to incur, costs and attorneys'ees to enforce the Australian judgment
in the United States, which costs and fees are recoverable under the above cited
24 statutory provisions, and which will be demanded according to proof at the time of
25 entry of judgment in California.
26
27
— 5—
FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT
PRAYER FOR RELIEF
WHEREFORE, ROX Australia VF Pty Ltd prays for judgment as follows:
3 1. For judgment against Defendant Swyft Inc. in the amount of USD
4 $ 96,954.61, plus interest post the Australian judgment under Australian law at the
5 ongoing rate of 6,75% interest, and interest post judgment entered by this Court at the
6 legal rate under California law;
7 2. For costs of suit incurred in Australia in the amount of USD $ 23,832.74,
8 and as incurred hereafter, according to proof; and
9 3. For such other and further relief as the Court deems proper.
~
10
11 DATE: July 16, 2020 MARTENSEN +++WRIGHT PC
m~
u 12
13 nr. n.A
14
EDWARD J. WRIGHT, ESQ. (JJ109469)
MARTENSFN ++'RIGHT PC
15 One Capitol Mall, Suite 670
Sacramento, California 95814
16 Telephone: (916) 448-9088
Facsimile: (916) 448-9084
17 ew@usa-eurolaw.corn
18 Attorneys for Plaintiff
19
20
21
23
25
27
— 6—
FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT
:xaioi: "A"
Form 43
UCPR 36.11 O00013OW19
Issued: 26 February 2019 1:27 PM
JUDGMENT/ORDER
COURT DETAILS
Court Supreme Court of NSW
Division Equity
List Commercial
Registry Supreme Court Sydney
Case number 2018/00359888
TITLE OF PROCEEDINGS
First Plaintiff Rox Australia VF Pty Ltd
First Defendant Swyft Australia Pty Ltd
Second Defendant Swyft Inc., a Delaware corporation
DATE OF JUDGMENT/ORDER
Date made or given 26 February 2019
Date entered 26 February 2019
TERMS OF JUDGMENT/ORDER
1. Grant leave to the plaintiff to filein Court the Affidavit of Jayne Alice Qorraj made 26 February
2019,
2. Judgment in favour of the plaintiff against the defendant in the sum of $ 265,791.19,
3. No order as to the costs of the proceedings.
SEAL AND SIGNATURE
Signature Chris D'Acth
Capacity Principal Registrar
Date 26 February 2019
document was issued by means of the Electronic Case Management System (ECM), pursuant to Part 3 of the
tf this
Uniform Civil Procedure Rules (UCPR), this document is taken to have been signed if the person's name is printed where
his or her signature would otherwise appear.
FURTHER DETAILS ABOUT Plaintif(s)
First Plaintiff
Name Rox Australia VF Pty Ltd
Address C106
iqcrrafoo 1 Page 1 of 2
11 Chandos Street
ST LEONARDS NSW 2065
Telephone
Fax
E-mail
Client reference
Legal representative for plaintiffs
Name Jayne Alice Qorraj
Practicing certificate number 51733
Address Aspect Legal Pty Limited Unit 6 Level 2
10 Rodborough Road
FRENCHS FOREST NSW 2086
DX address
Telephone 9099 8096
Fax
Email jayne.qorraj@aspectlegal.corn.au
Electronic service address jayne.qorraj@aspectlegal.corn.au
Name
'irst
FURTHER DETAILS ABOUT Defendant(s)
Defendant
Address
Swyft Australia
Suite 602
12 -
Pty Ltd
14 O'onnell Street
SYDNEY NSW 2000
Second Defendant
Name Swyft inc., a Delaware corporation
Address 140 Greary Street
Floor 7
San Francisco CA 94108
United States of America
irforrai001 Page 2 of 2
Preview
EDWARD J. WRIGHT, JR., ESQ. (109469) MARTENSEN «+ WRIGHT PC One Capitol Mall, Suite 670 ELECTRONICALLY Sacramento, California 95814 F I L E D Telephone: (916) 448-9088 Superior Court of California, County of San Francisco Facsimile: (916) 448-9084 07/16/2020 Attorneys for Plaintiff Clerk of the Court BY: BOWMAN LIU ROX AUSTRALIA VF PTY LTD Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 10 12 ROX AUSTRALIA VF PTY LTD, an Case No; CGC-20-584780 13 Australian corporation, 14 FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN 15 MONEY JUDGMENT 16 17 SWYFT INC., a Delaware 18 corporation, 19 Defendant 20 21 Plaintiff ROX Australia VF Pty Ltd ("ROX" or "Plaintiff" ) files this First 22 Amended Complaint and alleges and complains as follows: 23 JURISDICTION AND VENUE 24 1. This is an action for recognition of a foreign final judgment pursuant to 25 the Uniform Foreign Country Money Judgments Recognition Act ("UFCMJRA"), 26 California Code Civ. Proc. Section 1713, et seq., and pursuant to principles of 27 — I— FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT international comity. This Court has jurisdiction to hear the subject matter of the complaint, 2. Plaintiff ROX is, and at all times herein mentioned was, incorporated under the laws of Australia (Australian Company Number 610 801 306) and has its principal place of business at 11 Loombah Avenue, East Lindfield, NSW 2070, Australia. 3. Plaintiff is informed and believes and thereon alleges that Defendant Swyft Inc. ("Swyft" or "Defendant" ) is, and at all times herein mentioned was, incorporated under the laws of the State of Delaware, and authorized to do, and doing 10 business from its principal place of business at 140 Geary Street, Floor 7, San Francisco, California 94108. 12 4. This Court has jurisdiction over the Defendant, as the Defendant is 13 incorporated under the laws of California. 14 5. Venue is proper in this Court pursuant to California Code Civ. Proc. Defendant has 'IRST 15 Section 395.5 because its principal place of business in the County of 16 San Francisco. 17 CLAIM FOR RELIEF 18 RECOGNITION OF FOREIGN JUDGMENT UNDER THE UFCMJRA 19 6. Plaintiff incorporates paragraphs 1 through 5 as though fully set forth 20 herein, 21 7. On or about November 22, 2018, ROX initiated a civil action in the 22 Supreme Court of NSW, Australia ("NSW Supreme Court" ) against Swyft, alleging a 23 cause of action for breach of a Deed of Settlement (breach of contract) and seeking 24 money damages (the "Australian Action" ). Swyft, as the defendant in the Australian 25 l Action, appeared before the NSW Supreme Court and voluntarily submitted to its 26 jurisdiction. — 2— FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT 8. On or about January 31, 2019, Swyft filed a Notice of Appearance in the Australian Action. 9. The NSW Supreme Court had subject matter jurisdiction over the case and on or about February 26, 2019, held a hearing on the merits, The hearing included submissions of evidence and written testimony. 6 10. Based on the evidence submitted, the NSW Supreme Court rendered 7 judgment on February 26, 2019, awarding judgment in favor of ROX and against Swyft in the sum of AUD $ 265,791.19. 11. A true and correct copy of the Australian Judgment from the NSW 10 Supreme Court is attached hereto as Exhibit A and incorporated herein by this reference. 12 12. Under the laws of Australia, the judgment rendered by the NSW Supreme 13 Court is final, conclusive and enforceable in Australia. 13. Legal interest on the judgment amount accrues pursuant to Australian 15 Law pursuant to Rule 36.7 of the Uniform Civil Procedure Rules 2005. From February 16 26, 2019 to December 31, 2019, the applicable interest rate was 7.25% per annum; from 17 January 1, 2020 the rate was, and still is as of the date of filing, 6.75% per annum. 18, 14. On March 1, 2019, ROX received a payment from Swyft in the amount of 19 AUD $ 55,000 in partial satisfaction of judgment; On July 26, 2019, ROX received a 20 further payment from Swyft in the amount of $ 90,107. As of July 26, 2019, a balance of 21 AUD $ 120,684.19 remained due and payable. As of the date of filing, interest has 22 accrued as follows: 23 (a) AUD $ 158.37 accrued on the principal sum of AUD $ 265,791.19 24 from February 26, 2019 to March 1, 2019 at the rate of 7.25% per 25 annum; 26, 27 — 3— FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT (b) AUD $ 6,113.02 accrued on the principal sum of AUD $ 210,791.19 from March 2, 2019 to July 26, 2019 at the rate of 7.25% per annum; (c) AUD $ 4,002.99 accrued on the principal sum of AUD $ 120,684.19 from July 27, 2019 to December 31, 2019 at the rate of 7.25% per annum; 6 (d) AUD $ 4,038.11 accrued on the principal sum of AUD $ 120,684.19 from January 1, 2020 to July 1, 2020 at the rate of 6.75% per annum; (e) Interest shall continue to accrue at the Australian legal rate through entry of judgment by this Court, at which time, interest will begin 10 to accrue at the legal rate applied under the laws of the State of California, 12 15. As of the date of filing, the total judgment, including principal and 13 accrued interest, amounts to AUD $ 134,996.68. The Federal Reserve exchange rate on 14 the day of the judgment was .7182 AUD/USD. In United States Dollars, the total 15 judgment equals USD $ 96,954.61 (the "Australian Judgment" ). 16 16. The Australian Judgment gives rise to an award of court costs and 17 attorneys'ees incurred as costs of enforcement, as provided for at section 127 of the 18 Civil Procedure Act 2005 (NSW) and under section 107 of the Service and Execution of 19 Process Act 1992 (Cth). ROX incurred legal fees through Australian counsel to enforce 20 the Australian Judgment in the amount of AUD $ 33,184. The Federal Reserve 21 exchange rate on the day of the judgment was .7182 AUD/USD. In United States 22 Dollars, the recoverable costs incurred in Australia equal USD $ 23,832.74. Plaintiff has 23 incurred, and will continue to incur, costs and attorneys'ees to enforce the Australian 24 Judgment in the United States, which costs and fees are recoverable under the above 25 cited statutory provisions, and which will be demanded according to proof at the time 26 of entry of judgment in California. 27 — 4— FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT 17. In light of the foregoing, the Australian Judgment is subject to full enforcement in accordance with its terms by ROX against Swyft and is entitled to recognition and enforcement by this Court in the same manner as a judgment rendered in a sister state. 5 SECOND CLAIM FOR RELIEF 6 RECOGNITION OF JUDGMENT PURSUANT TO INTERNATIONAL COMITY 18, Plaintiff incorporates paragraphs 1 through 17 as though fully set forth herein. 19. The Court has authority to recognize foreign judgments even in circumstances where the judgments are not within the scope of the UFCMJRA. Cal. Code Civ. Proc. g 1723. 12 20. The Australian judgment is entitled to recognition and enforcement 13 pursuant to traditional principles of international comity as understood and applied 14 by the courts of the United States and the State of California. 15 21. The Australian judgment gives rise to an award of court costs and 16 attorneys'ees incurred as costs of enforcement, as provided for at section 127 of the 17 Civil Procedure Act 2005 (NSW) and under section 107 of the Service and Execution of 18 Process Act 1992 (Cth). ROX incurred legal fees through Australian counsel to enforce 19 the Australian judgment in the amount of AUD $33,184. The Federal Reserve exchange 20 rate on the day of the judgment was .7182 AUD/USD. In United States Dollars, the 21 recoverable costs incurred in Australia equal USD $ 23,832.74. Plaintiff has incurred, 22 and will continue to incur, costs and attorneys'ees to enforce the Australian judgment in the United States, which costs and fees are recoverable under the above cited 24 statutory provisions, and which will be demanded according to proof at the time of 25 entry of judgment in California. 26 27 — 5— FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT PRAYER FOR RELIEF WHEREFORE, ROX Australia VF Pty Ltd prays for judgment as follows: 3 1. For judgment against Defendant Swyft Inc. in the amount of USD 4 $ 96,954.61, plus interest post the Australian judgment under Australian law at the 5 ongoing rate of 6,75% interest, and interest post judgment entered by this Court at the 6 legal rate under California law; 7 2. For costs of suit incurred in Australia in the amount of USD $ 23,832.74, 8 and as incurred hereafter, according to proof; and 9 3. For such other and further relief as the Court deems proper. ~ 10 11 DATE: July 16, 2020 MARTENSEN +++WRIGHT PC m~ u 12 13 nr. n.A 14 EDWARD J. WRIGHT, ESQ. (JJ109469) MARTENSFN ++'RIGHT PC 15 One Capitol Mall, Suite 670 Sacramento, California 95814 16 Telephone: (916) 448-9088 Facsimile: (916) 448-9084 17 ew@usa-eurolaw.corn 18 Attorneys for Plaintiff 19 20 21 23 25 27 — 6— FIRST AMENDED COMPLAINT FOR RECOGNITION OF FOREIGN MONEY JUDGMENT :xaioi: "A" Form 43 UCPR 36.11 O00013OW19 Issued: 26 February 2019 1:27 PM JUDGMENT/ORDER COURT DETAILS Court Supreme Court of NSW Division Equity List Commercial Registry Supreme Court Sydney Case number 2018/00359888 TITLE OF PROCEEDINGS First Plaintiff Rox Australia VF Pty Ltd First Defendant Swyft Australia Pty Ltd Second Defendant Swyft Inc., a Delaware corporation DATE OF JUDGMENT/ORDER Date made or given 26 February 2019 Date entered 26 February 2019 TERMS OF JUDGMENT/ORDER 1. Grant leave to the plaintiff to filein Court the Affidavit of Jayne Alice Qorraj made 26 February 2019, 2. Judgment in favour of the plaintiff against the defendant in the sum of $ 265,791.19, 3. No order as to the costs of the proceedings. SEAL AND SIGNATURE Signature Chris D'Acth Capacity Principal Registrar Date 26 February 2019 document was issued by means of the Electronic Case Management System (ECM), pursuant to Part 3 of the tf this Uniform Civil Procedure Rules (UCPR), this document is taken to have been signed if the person's name is printed where his or her signature would otherwise appear. FURTHER DETAILS ABOUT Plaintif(s) First Plaintiff Name Rox Australia VF Pty Ltd Address C106 iqcrrafoo 1 Page 1 of 2 11 Chandos Street ST LEONARDS NSW 2065 Telephone Fax E-mail Client reference Legal representative for plaintiffs Name Jayne Alice Qorraj Practicing certificate number 51733 Address Aspect Legal Pty Limited Unit 6 Level 2 10 Rodborough Road FRENCHS FOREST NSW 2086 DX address Telephone 9099 8096 Fax Email jayne.qorraj@aspectlegal.corn.au Electronic service address jayne.qorraj@aspectlegal.corn.au Name 'irst FURTHER DETAILS ABOUT Defendant(s) Defendant Address Swyft Australia Suite 602 12 - Pty Ltd 14 O'onnell Street SYDNEY NSW 2000 Second Defendant Name Swyft inc., a Delaware corporation Address 140 Greary Street Floor 7 San Francisco CA 94108 United States of America irforrai001 Page 2 of 2