An Analysis of Re Packer; Ex Parte Packer [2026] WASC 133
1. Introduction
Re Packer; Ex Parte Packer [2026] WASC 133 is a decision of Master Russell of the Supreme Court of Western Australia, delivered on 14 April 2026. The matter concerned an ex parte application to register an order of the High Court of Justice of England and Wales – specifically, an order made in the Business and Property Courts in Bristol (Property, Trusts and Probate List (ChD)) – pursuant to s 6 of the Foreign Judgments Act 1991 (Cth).
The judgment is not remarkable for any novel legal principle. Master Russell expressly adopts and applies the framework recently synthesised by Gething J in Hardner v Incor Holdings Ltd [2025] WASC 76, and the case "turns on its own facts". Its significance lies in the practical guidance it affords commercial, insolvency and debt-recovery practitioners advising clients holding a foreign judgment against a judgment debtor resident in Western Australia.
Three points of practical consequence are crisply illustrated. First, the statutory framework in the Act prevails over inconsistent provisions in O 44A of the Rules of the Supreme Court 1971 (WA) – most obviously, on the methodology for currency conversion. Secondly, foreign-law statutory interest (here, 8% per annum under s 17 of the Judgments Act 1838 (UK) and the Judgment Debts (Rate of Interest) Order SI 1993/564 (UK)) is recoverable on registration and accretes to the judgment sum as registered. Thirdly, and most importantly, the apparently broad entitlement in s 6(15)(a) of the Act to "reasonable costs of and incidental to registration" is not a back-door to indemnity costs. A claim that is, on its face, not reasonable – here, costs of $16,964.56 on a judgment of $33,131.67 – will be refused summary fixation and remitted to taxation.
The decision is of immediate utility to practitioners advising clients who hold a judgment of any superior court of a country listed in the Schedule to the Foreign Judgments Regulations 1992 (Cth), and who seek to enforce that judgment against a debtor resident or holding assets in Western Australia.
2. Relevant Legal Framework
The statutory gateway: section 6 of the Act
Part 2 of the Foreign Judgments Act 1991 (Cth) establishes a statutory regime for the registration of specified foreign judgments as judgments of Australian superior courts. Section 6(1) provides that a judgment creditor under a judgment to which Part 2 applies may apply to an Australian superior court at any time within six years after the date of the foreign judgment, or, where there have been appeal proceedings, the date of the last judgment in those proceedings.
Section 6(3) is in mandatory terms: subject to the Act and to proof of the matters prescribed by the applicable Rules of Court, the court "is to order the judgment to be registered". There is no residual discretion; if the prescribed matters are proved, registration follows.
The Act is extended to nominated courts by the Foreign Judgments Regulations 1992 (Cth), reg 3 and reg 4 and the Schedule. The United Kingdom appears at Item 27 of the Schedule, which lists the High Court of Justice of England and Wales as a superior court for the purposes of the Act.
The procedural framework: Order 44A RSC
Order 44A of the Rules of the Supreme Court 1971 (WA) prescribes the procedure for registration. An application may be made ex parte (r 3(1)). The affidavit in support must address each of the matters in r 4, including entitlement to enforce, non-compliance, continuing foreign enforceability, and the absence of any s 7 ground for set-aside (r 4(1)(b)). Interest accrued under the law of the country of the original court up to the time of registration must be specified (r 4(1)(c)). The affidavit must also state the full name, title and usual or last known address of each of the judgment creditor and the judgment debtor (r 4(3)). Notice of registration must be served personally on the judgment debtor (r 8), unless the Court otherwise orders.
Inconsistency: the Act prevails
Order 44A r 4(2) purports to require the affidavit, where the judgment sum is expressed in a currency other than Australian dollars, to state the Australian dollar equivalent calculated at the rate of exchange prevailing at the date of the judgment. Section 6(11)(b) of the Act provides that, in the absence of an application to register in the foreign currency, the judgment is to be registered as if it were for an equivalent amount in Australian currency, based on the rate of exchange prevailing on the second business day before the day on which the application for registration is made – the "conversion day". Section 6(11A) requires the conversion rate to be the average of the rates from three authorised foreign exchange dealers selected by the judgment creditor.
As Gething J observed in Hardner at [13]–[14], referring to Loh v Soh [2013] WASC 244 at [12] (Master Sanderson), the Act prevails over the RSC in respect of any inconsistency.
Foreign-law interest
Section 15(b) of the Act provides that, where an amount of money is payable under the judgment, a judgment registered under the Act is to be registered for any interest which, by the law of the country of the original court, becomes due under the judgment up to the time of registration. For English judgments, s 17 of the Judgments Act 1838 (UK), read with the Judgment Debts (Rate of Interest) Order SI 1993/564 (UK), fixes the rate at 8% per annum simple until the debt is satisfied.
Costs
Section 6(15)(a) of the Act provides that a judgment registered under s 6 is to be registered "for any reasonable costs of and incidental to registration", including the cost of obtaining a certified copy of the judgment and evidence of the exchange rate on the conversion day. The word "reasonable" does substantial work, as Packer demonstrates.
The state of the law before Packer
Prior to Packer, the framework had been the subject of clear recent exposition in Hardner v Incor Holdings Ltd [2025] WASC 76, and earlier in Loh v Soh [2013] WASC 244. Packer does not depart from those authorities; it applies them. Its practical value lies in the Master's treatment of the costs of registration, on which the earlier authorities do not speak as directly.
3. The Facts of the Case
The judgment creditor, Debra Ellen Packer, and the judgment debtor, Lynn Ann Packer, share a surname; Master Russell, for convenience, refers to them by their first names (at [3]). The judgment debtor resides in Western Australia (at [2]).
On 17 April 2025, Deputy High Court Judge Hugh Sims KC, sitting in the High Court of Justice of England and Wales, Business and Property Courts in Bristol, Property, Trusts and Probate List (ChD), made an order in Claim No PT-2023-BRS-000109 (in which Debra was the claimant and Lynn was the defendant) requiring Lynn to pay to Debra £16,000, representing 50% of Debra's costs of those proceedings, within 14 days of the order (at [4]–[5]). Payment was due by 15 May 2025. No appeal was taken (at [14]). The judgment remained unsatisfied (at [29]).
On 20 February 2026, Debra filed an ex parte originating motion for registration of the Foreign Judgment in the Supreme Court of Western Australia (at [1]). The application was supported by her own affidavit sworn on 19 February 2026 and two affidavits of her Australian solicitor, Ms Lisa Anne Hando (sworn on 10 April 2026 and 13 April 2026) (at [9]). The application first came before Master Russell on 12 March 2026, when directions were made for further materials, and was adjourned to 14 April 2026 (at [6]).
Debra sought registration in Australian dollars. The conversion day was accordingly 17 February 2026, being the second business day before filing (at [34]). Ms Hando obtained rates from three authorised foreign exchange dealers and deposed to a prevailing rate of GBP 1 = AUD 1.9189 (at [34]).
Interest was claimed at 8% per annum under s 17 of the Judgments Act 1838 (UK) and the Judgment Debts (Rate of Interest) Order SI 1993/564 (UK) from 17 April 2025 to 13 April 2026 (361 days), amounting to £1,265.97 (at [32]–[33]).
Debra also sought her costs of the application and of registration, fixed in the amount of $16,964.56 – an amount supported by the invoices rendered by her English and Australian solicitors, and in excess of 50% of the registered judgment sum (at [41]).
4. Analysis of the Court's Reasoning
Registration is mandatory
Master Russell restated that s 6(3), "which is in mandatory terms", compels registration where the judgment creditor proves the matters prescribed in RSC O 44A (at [18]). The Master's enquiry is not a merits review; for the purposes of determining the application, the Court does not go behind the judgment or order sought to be registered, consistently with Hardner at [6] (at [16]).
The Act overrides inconsistent Rules
At [20]–[21], the Master addressed the inconsistency between r 4(2) and s 6(11)(b) of the Act. Applying Hardner at [13]–[14] (which in turn referred to Loh v Soh [2013] WASC 244 at [12]), the Act prevails over the RSC in respect of any inconsistency. The practical consequence is that the conversion of the foreign currency sum to Australian dollars is performed by reference to the conversion day prescribed by the Act – the second business day before filing – and not by reference to the date of the foreign judgment.
Foreign-law interest is recoverable on registration
The Master accepted that s 17 of the Judgments Act 1838 (UK), read with SI 1993/564 (UK), provides for interest at 8% per annum on judgment debts in England and Wales until satisfied, and that the interest accrued on the Foreign Judgment from 17 April 2025 to 13 April 2026 (361 days) calculated at 8% simple on £16,000 amounted to £1,265.97 (at [32]–[33]). The acceptance illustrates the operation of s 15(b) of the Act: interest accruing under the law of the country of the original court, up to the time of registration, becomes part of the registered sum.
Currency conversion mechanics
At [23], the Master reiterated that s 6(11A) of the Act requires the rate of exchange prevailing on the conversion day to be the average of the rates from three authorised foreign exchange dealers selected by the judgment creditor. Applying the rate (GBP 1 = AUD 1.9189), the AUD equivalents were: principal £16,000 = $30,702.40; interest £1,265.97 = $2,429.27; total $33,131.67 (at [35]–[36]).
Costs – the crux of the decision
At [39]–[42], the Master dealt with Debra's application for costs. Although it was accepted that Debra was entitled to her reasonable costs of and incidental to registration under s 6(15)(a) of the Act, three difficulties attended the application to fix those costs summarily.
First, the material before the Court did not permit an assessment and fixation on the papers (at [42]). Secondly, the amount claimed "effectively seeks costs on an indemnity basis" and was not, on its face, reasonable (at [42]). Thirdly – and by clear implication – the quantum claimed was disproportionate: $16,964.56 of costs on a $33,131.67 registered judgment represented more than 50% of the principal, and the Master expressly flagged this at [41].
The Master accordingly declined to fix the costs, and ordered that they be taxed, if not agreed, and added to the Foreign Judgment as registered (at [42]; Annexure A, order 6). The reasoning places the burden squarely on the judgment creditor to present costs evidence proportionate to the application and capable of summary assessment. Where that burden is not met, the statutory entitlement crystallises only after taxation.
5. Assessing the Consequences
The registered judgment sum
The registered sum comprised three components: the principal in English pounds converted to Australian dollars; the foreign-law interest accrued to the time of registration, converted likewise; and the costs of registration (to be taxed, if not agreed).
On the figures accepted by the Court, principal was £16,000 (= $30,702.40 at the statutory conversion day rate of GBP 1 = AUD 1.9189). Interest on the principal at 8% per annum simple for 361 days was £1,265.97 (= $2,429.27). The total registered sum was $33,131.67 (at [35]–[36]).
Consequences for the judgment creditor of the costs order
The principal consequence of the taxation order is delay. The creditor is now required either to reach agreement on costs (which commonly requires a discount), or to prepare a bill and submit to taxation. The former option depends on the debtor's willingness to engage; the latter is a separate, formal process that takes further weeks or months and attracts its own costs. Until agreement or taxation, no monetary sum for costs forms part of the registered judgment, and execution (even after the set-aside period) cannot proceed in respect of costs.
Taxation on the ordinary (party-party) basis, applying the Legal Costs Determinations, will almost certainly yield less than the full invoiced amount. The recoverable gap between solicitor-client costs and party-party costs is often material. The $16,964.56 claimed was, in effect, a claim for indemnity recovery; the taxed figure, if matters proceed to taxation, is likely to be significantly lower.
Consequences for the judgment debtor
The taxation order creates a window for the debtor to negotiate. A reasonable offer of agreed costs, promptly made, is likely to produce a better outcome for both sides than taxation. Where the debtor does not engage, the taxed amount will ultimately be added to the registered judgment and enforced.
Systemic consequences
The decision signals that even statutory entitlements expressed in broad terms ("reasonable costs") are policed. An applicant who approaches s 6(15)(a) as though it delivers indemnity recovery will be disabused. Practitioners would be well advised to front-load the costs material in the supporting affidavit – with a short-form statement of work, fee earner rates, time spent and disbursements – and to seek a fixed sum that can be defended as proportionate on the papers.
6. Worked Example
Consider the following hypothetical. Acme Holdings Ltd, an English company, obtained a judgment on 1 March 2025 in the High Court of Justice of England and Wales, Commercial Court, against Beta Pty Ltd, a Western Australian company, for £250,000 in damages and £45,000 of detailed-assessed costs. No appeal has been taken. On 1 March 2026, Acme instructs Australian solicitors to register the judgment in the Supreme Court of Western Australia. The originating motion is filed on 15 March 2026.
The judgment creditor's perspective
Acme's solicitors must obtain from London a certified copy of the sealed judgment to satisfy r 4(1)(a). They must prove, on information and belief, entitlement to enforce, non-compliance, continuing enforceability in England, and the absence of any s 7 ground – all in the affidavit under r 4(1)(b). They must calculate foreign-law interest: on the principal of £250,000 at 8% per annum simple from 1 March 2025 to the date of the supporting affidavit. If the affidavit is sworn on 13 March 2026 (378 days), interest is £250,000 × 8% × 378/365 = £20,712.33.
Currency conversion is performed at the statutory conversion day – 11 March 2026 (the second business day before 15 March 2026). Acme obtains rate quotes from three authorised foreign exchange dealers for 11 March 2026 and takes the arithmetic mean, exhibiting the evidence in Ms Solicitor's affidavit.
Acme's solicitors prepare a focused costs statement, not a dump of invoices. The statement identifies the work done (certification and authentication of the foreign judgment, drafting of the affidavits, attendance at the first return, preparation of the short-form order), the fee earner rates, the disbursements (including the FX dealer quotes), and a reasoned proposition that the claim is proportionate to an uncontested ex parte registration. A round figure – say, $4,500 – is sought as a fixed sum, readily defensible on the papers.
The judgment debtor's perspective
On service of the notice of registration under r 8, Beta has a limited window (21 days in Packer; the period must be stated in the order: s 6(4)) to apply to set aside under s 7. Beta's solicitors must promptly identify whether any s 7 ground is available (for instance, absence of jurisdiction in the foreign court under s 7(2)(a)(iv); fraud under s 7(2)(a)(vi); public policy under s 7(2)(a)(xi)). If none, the focus shifts to costs: an early and well-pitched offer is likely to be more cost-effective than taxation.
Where solvency is doubtful, Beta should take advice on any restructuring options and the interplay with the 21-day set-aside window and the moratorium on execution until its expiry (Annexure A, orders 4 and 5).
7. Practitioner Guidance: A Step-by-Step Framework
The following framework distils Packer into sequential steps for a Western Australian practitioner acting for a judgment creditor seeking registration of a foreign judgment.
Step 1 – Confirm the foreign court is within the Schedule
Refer to the Schedule to the Foreign Judgments Regulations 1992 (Cth). The United Kingdom is at Item 27 (see Packer at [12]); other Commonwealth and non-Commonwealth countries are listed but many are not. If the court is not listed, the Act does not apply and the creditor must commence fresh proceedings on the foreign judgment, with attendant complications.
Step 2 – Verify limitation
Application must be made within six years of the date of the foreign judgment or of the last judgment in any appeal proceedings (s 6(1); Packer at [13]).
Step 3 – Obtain a certified sealed copy of the foreign judgment
Order 44A r 4(1)(a) requires a certified copy issued by the original court and authenticated by its seal. Arrange this through agents in the foreign jurisdiction and budget for lead time.
Step 4 – Establish foreign-law interest by admissible evidence
Identify the governing statute and rate. For English judgments, s 17 of the Judgments Act 1838 (UK) and SI 1993/564 (UK) provide for 8% per annum simple (Packer at [32]). Calculate accrued interest to the date of the affidavit with precision to the day. Packer demonstrates the method: 361 days × 8% × £16,000 ÷ 365 = £1,265.97 (at [33]).
Step 5 – Fix the conversion day and obtain three dealer rates
The conversion day is the second business day before filing (s 6(11)(b); Packer at [34]). Engage three authorised foreign exchange dealers and obtain their rates for the conversion day. Take the arithmetic mean (s 6(11A); Packer at [23]). Exhibit the quotes in the supporting affidavit. Do not rely on O 44A r 4(2), which is inconsistent with the Act: see Packer at [20]–[21].
Step 6 – Draft the affidavit to address each element of O 44A r 4
The affidavit must address entitlement to enforce, non-compliance, continuing enforceability abroad, and the absence of any s 7 ground (r 4(1)(b)(i)–(iv)); interest due under the foreign law up to registration (r 4(1)(c)); and the full name, title and usual or last known address of each of the parties (r 4(3)). Exhibit the certified sealed foreign judgment (r 4(1)(a)).
Step 7 – Prepare the costs evidence properly
Do not dump invoices. Prepare a short-form costs statement that identifies time spent, fee earner rates and disbursements, and makes a reasoned proposition that the claim is proportionate to the task of registration. Seek orders fixing costs in a specific, modest sum. A claim that, on its face, is not reasonable – or one that invites summary assessment on an indemnity basis – will be refused: Packer at [41]–[42].
Step 8 – File ex parte and attend the first return
The application may be made ex parte (O 44A r 3(1); Packer at [15]). Expect directions on any deficiencies at the first call – Master Russell adjourned Packer from 12 March to 14 April 2026 for further materials (at [6]).
Step 9 – Serve the notice of registration personally
Upon the order being made, prepare and serve notice of registration personally, unless the Court otherwise orders (O 44A r 8; Packer at [25]).
Step 10 – Do not execute until the set-aside period expires
The order must state the period within which an application to set aside may be made (s 6(4); Packer at [26]). In Packer, that period was 21 days from service (Annexure A, order 4). Execution does not issue until the period has expired or any set-aside application is disposed of (Annexure A, order 5).
8. Evidence and Arguments Available to Each Side
For the judgment creditor
The creditor's evidence should include: a certified sealed copy of the foreign judgment (O 44A r 4(1)(a)); an affidavit addressing each element of r 4(1)(b)(i)–(iv) with particulars of non-compliance; evidence of foreign-law enforceability (typically an affidavit from a foreign solicitor, or, where the text of the foreign statute is unambiguous, an affidavit of the Australian solicitor relying on the statute); foreign-law interest evidence (the statute, any subordinate instrument, and any judicial gloss); three FX dealer quotes for the conversion day, exhibited in the solicitor's affidavit; and a focused costs statement proportionate to the application.
The creditor's central submission is that s 6(3) is mandatory and registration follows as of course upon proof of the prescribed matters (Packer at [18]). Secondary submissions address the inconsistency between s 6(11)(b) and O 44A r 4(2) – the Act prevails (Packer at [21]) – and the recoverability of foreign-law interest under s 15(b).
For the judgment debtor
On service of the notice of registration, the debtor's first enquiry is whether any s 7 ground is available. Section 7 grounds include: registration in contravention of the Act; want of jurisdiction in the foreign court; judgment obtained by fraud; public policy; and related matters. Each is narrow and fact-specific.
Where no s 7 ground is available, the debtor's focus is on minimising the additional cost burden. An early and well-pitched offer of agreed costs, fixed in a modest sum, is likely to produce a better outcome than taxation – for both sides. The debtor should avoid inadvertently strengthening the creditor's position by forcing a taxation when a negotiated outcome is available.
Where the foreign judgment has been paid in part, the affidavit material must be scrutinised to ensure that the unsatisfied amount is correctly stated (r 4(1)(b)(ii)). Overstatement is a basis for challenge.
9. Key Takeaways for Legal Practice
The following propositions distil the practical message of the decision.
1. Registration is mandatory upon proof of the prescribed matters. Section 6(3) of the Foreign Judgments Act 1991 (Cth) is in mandatory terms. Planning should proceed on the basis that the application will succeed if, but only if, the evidence is complete: Packer at [18].
2. The Act overrides inconsistent Rules. Where O 44A of the RSC is inconsistent with the Act, the Act prevails: Packer at [21]; Hardner v Incor Holdings Ltd [2025] WASC 76 at [13]–[14]; Loh v Soh [2013] WASC 244 at [12]. The point is not theoretical; it determines the date on which currency is converted.
3. Foreign-law interest is recoverable on registration. Interest that accrues under the law of the country of the original court, up to the time of registration, may be added to the registered sum (s 15(b); Packer at [31]–[33]). For English judgments, that is 8% per annum simple under s 17 of the Judgments Act 1838 (UK) and SI 1993/564 (UK).
4. Three-dealer averaging is mandatory for currency conversion. Section 6(11A) requires an average of rates from three authorised foreign exchange dealers on the conversion day. A single rate obtained from the internet is not sufficient evidence: Packer at [23].
5. Reasonable costs of registration are recoverable – but not on an indemnity basis. Section 6(15)(a) entitles the creditor to reasonable costs of and incidental to registration, but a claim that is, on its face, not reasonable – still less one that amounts to indemnity costs – will be refused summary fixation: Packer at [42].
6. Proportionality is a practical constraint on the quantum of costs claimed. A claim of $16,964.56 on a $33,131.67 judgment – more than 50% of the principal – was expressly flagged as outside the range of the reasonable: Packer at [41]. Practitioners should calibrate accordingly.
7. A taxation order is the default where the costs evidence is insufficient. Where the material does not permit summary assessment, the Court will order costs to be taxed, if not agreed, and added to the registered judgment: Packer at [42]. That defers recovery and attracts further costs. Front-load the evidence to avoid this outcome.
8. The Court will not go behind the foreign judgment. Registration is not a vehicle for collateral attack on the merits. The debtor's remedies lie in the foreign court and, within narrow limits, under s 7 of the Act: Packer at [16]; Hardner at [6].
9. Statutory entitlement is not statutory indemnity. More broadly, Packer is a reminder that where a statute uses the word "reasonable", the Court polices both the quantum claimed and the evidence supporting it. The systemic message is that practitioners must not treat costs entitlements in statutory schemes as a short cut around proportionality and reasonableness.
10. Conclusion
Re Packer; Ex Parte Packer is a short and orthodox judgment. Its value lies in its neat illustration, on a single set of facts, of the full procedural architecture for registering a foreign judgment in Western Australia – from the statutory gateway in s 6 of the Foreign Judgments Act 1991 (Cth), through the mechanics of currency conversion under s 6(11)(b) and s 6(11A), the calculation of foreign-law interest under s 15(b), and the procedural framework in O 44A of the RSC, to the sometimes under-appreciated question of what costs can in fact be recovered under s 6(15)(a).
The practical message of the decision is twofold. The registration pathway is efficient and, upon proof of the prescribed matters, mandatory: creditors should expect registration to follow where the evidence is complete. But the statutory entitlement to costs is not an entitlement to indemnity recovery. A claim that is, on its face, not reasonable – or which is not supported by evidence sufficient for summary assessment – will be sent to taxation, with consequent delay and further expense.
For practitioners, the lesson is to prepare the application as a complete package: certified sealed judgment; properly proved foreign-law interest; proper three-dealer currency conversion; and a focused, proportionate costs statement. Where each element is attended to, registration produces a domestic judgment within weeks and with predictable cost recovery. Where any element is neglected, the registered sum will still be obtained, but the overall commercial result will suffer.