Thursday, 27 August 2015

Recognition and enforcement of foreign judgments in Australia

Registration of foreign judgments

For a plaintiff seeking to enforce a judgment, it is not uncommon for a defendant’s assets to be spread across the globe, creating both opportunities and problems.  The opportunity lies in accessing potential sources of assets to satisfy the judgment.  The problem is that a company or person might have no assets in the plaintiff’s home jurisdiction, requiring the judgment to be enforced overseas.

The steps involved in accessing a defendant’s Australian assets to satisfy the judgment are recognition and enforcement.  We will explore these steps further in a series of upcoming posts.

In this first post we look at one method of recognition: registration of the foreign judgment under the Foreign Judgments Act 1991 (Cth) (Act). 

When can a foreign judgment be registered?

A foreign judgment can only be registered in Australia if it was made by a court of a country listed in the Regulations to the Act.  These include courts of United Kingdom, Hong Kong, Japan, South Korea, Germany, France and several provinces of Canada among others.  Generally, only judgments of the superior courts of those countries are registrable. 

Judgments of New Zealand courts must be registered under the Trans-Tasman Proceedings Act 2010 (Cth) (TTP Act) as explained below.

The United States of America is a notable absence from the Regulations.  Therefore, judgments of US courts must be recognised under the common law rules.  This process will be discussed in our next post.

Even if the foreign judgment comes from a court that is listed in the Regulations, the judgment must be:
  • a money judgment (one under which money is payable), and
  • final and conclusive (but an actual or potential appeal does not prevent a judgment from being ‘final and conclusive’). 

Who can register the foreign judgment?

The foreign judgment can be registered by a judgment creditor, identified as the person (or assignee) that was given the foreign judgment.  The foreign judgment can be registered against the judgment debtor, the person against whom the judgment was given. 

How is the foreign judgment registered?

The foreign judgment is registered by making an application to an Australian court, typically the Supreme Court of a State or Territory.  There is no requirement to register in a particular State or Territory and it is possible to have the judgment registered in multiple jurisdictions.  As the ultimate goal is to satisfy the money owing under the judgment, it is advisable to work out where the judgment debtor has assets and to make the application to the Supreme Court of that State or Territory. 

An application must be made within six years after the later of the date of judgment and the date of last judgment in any appeal proceedings.

What happens when the foreign judgment is registered?

Once registered, the foreign judgment is treated exactly the same as any other decision of that court, meaning a range of enforcement options become available to the judgment creditor.  The judgment creditor may also use the foreign judgment to bankrupt an individual or wind up a company.  Enforcement options will be discussed in our third post of the series. 

Can a foreign judgment be deregistered?

The judgment debtor may apply to deregister a foreign judgment (called ‘setting the foreign judgment aside’) for a number of reasons, such as that the foreign judgment:
  • was registered for an amount greater that was payable under it 
  • was obtained by fraud
  • was reversed on appeal or set aside, or
  • has been wholly satisfied (i.e. the judgment debtor has paid the money owing under the judgment). 
A foreign judgment might also be deregistered if the original court had no jurisdiction.  The judgment creditor can usually prove the original court had jurisdiction by proving that the judgment debtor voluntarily submitted to the jurisdiction of the court.  However the judgment debtor does not voluntarily submit to the original court’s jurisdiction simply because it challenged its jurisdiction or tried to secure the release of property seized or frozen by the court. 
The timeframe in which a judgment debtor must apply to deregister the foreign judgment will be specified when the judgment is registered by the court.

Registering foreign judgments under other legislation and treaties

Judgments of New Zealand courts must be registered under the TTP Act.  The registration process is generally the same however the TTP Act allows a broader range of monetary based judgments to be registered. 
Alternately, judgments may be recognised under a bilateral treaty.  For example, Australia is a party to a bilateral treaty with the United Kingdom called the Reciprocal Recognition and Enforcement of Judgment in Civil and Commercial Matters 1994.  As Australia is not a party to the Hague Convention on Recognition of Foreign Judgments in Civil and Commercial Matters 1971, recognition in Australia under that convention is not an option. 
In the next post in this series we will look at recognition of foreign judgments under the common law.

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