Foreign Judgments in Australia – Tips and Traps of the Statutory Regime

Foreign Judgments in Australia – Tips and Traps of the Statutory Regime

Sarah Jones, Legal Practitioner Director

In these days of close international relations, the need to enforce a judgment made by a foreign court against a person who has moved to or is residing in Australia is becoming more common. Australia has a statutory regime to assist with this: the Foreign Judgments Act 1991 (Cth) (“the Act”) and the Foreign Judgments Regulations 1992 (Cth) (“the Regulations”).[1]

Which judgments can be registered?

A money judgment that is final and conclusive and was given in a superior court of a county to which Part 2 of the Act extends may be registered in Australia.[2]

The Regulations list the superior courts of the countries with substantial reciprocity of treatment. Judgments given by those courts will be registrable in Australia via the Act. This includes higher courts (for example, Supreme Courts and/or High Courts) of 35 countries.[3]

Section 6 of the Act requires an applicant to bring the application to register the judgment (if it meets the requirements above) within 6 years of the date of the judgment.

What is the process to register?

The application to register should be made in the Supreme Court of the relevant state or territory of Australia where the applicant wishes to enforce.[4] The relevant factors to meet are included within each state’s legislation. For the purposes of this article, the New South Wales process is used, but it is generally referable in the different Australian states and territories.

In New South Wales, an originating summons, along with supporting affidavits must be filed with the Supreme Court in order for the application to be heard. The Registrars of the Supreme Court in New South Wales do not have delegated power to deal with the application where it is ex parte, and therefore it must be heard by a Supreme Court Judge.[5]

What factors must be met?

The New South Wales Uniform Civil Procedure Rules 2005 (NSW) includes a statutory list of evidence which must be provided to the Supreme Court in order to successfully register a foreign judgment.

This includes:[6]

  1. The judgment or a verified or certified copy of the judgment from the original court; As well as evidence that the judgment can be enforced in the country of origin and that, if it were registered by the Supreme Court, it would not be liable to be set aside;
  2. Advice where only some of the provisions of the judgment are the subject of the application;
  3. Evidence showing the amount originally payable;
  4. Evidence showing that the Supreme Court is the appropriate court pursuant to s 6 of the Act;
  5. Evidence of the name, trade or business, and the usual or last known address of both parties;
  6. Evidence showing that the judgment creditor is entitled to enforce the judgment;
  7. Relevant interest calculations;
  8. The extent to which the judgment is unsatisfied; and
  9. Any such other evidence as may be required.[7]

The evidence may be produced by way of the supporting affidavits.[8]

Calculations

It’s important when calculating interest that: the rate of interest, the amount of interest up to the time of the application, and the daily amount of interest sought thereafter are all attested to and calculated.[9]

Further, as the judgment will be in a foreign currency, within 24 hours before filing the application a currency exchange to Australian dollars should be calculated. Our view is that three (3) different exchanges should be considered, and the median should be used for the calculations.

Which orders should be sought?

The following orders ought to be sought:

Registration of a foreign judgment pursuant to part 2 of the Act and the relevant rule of the state legislation;[10]

An order that the summons/application need not be served on the judgment debtor;[11]

An order that, once the registration is completed, the judgment debtor will have a limited time to make an application to set it aside.[12]

As to point 3, it is appropriate to make this a timeframe that is reasonable in the relevant state (for example: 21 days).

How do you then enforce the judgment?

Once the order has been made by the Court, a Notice of Registration of Foreign Judgment, a copy of the orders made and a copy of the original judgment should be personally served on the judgment debtor (usually an individual for the purposes of registering a foreign judgment).

Once the timeframe to set aside the order has lapsed, if no such application is made, the applicant (judgment creditor) may seek a copy of the registered judgment from the Registrar of the Supreme Court,[13] and that judgment may be enforced as if it were an Australian money judgment.

 

Author: Sarah Jones, Legal Practitioner Director

Published: June 2016

 

[1] It should be noted that this article will not cover common law principles where there is no international agreement or the very specific laws which exist between New Zealand and Australia with respect to some judgments.

[2] Section 5 of the Act.

[3] Schedule to the Regulations.

[4] Section 6 of the Act and Rule 53.2 of the UCPR (NSW).

[5] Section 13 Civil Procedure Act 2005 (NSW).

[6] Rule 53.3 UCPR (NSW).

[7] For example, where a Plaintiff’s name has changed between instituting proceedings in the original court and bringing the application for registration of a foreign judgment, an affidavit annexing appropriate evidence showing the names are one in the same party, will be acceptable evidence: Bank of South Pacific Tonga (Formerly Westpac Bank of Tonga) v Tricia Emberson [2016] NSWSC 383.

[8] See, for example, Raffaele Viscardi SRL v Quality Centre Food Services Pty Ltd [2013] NSWSC 1104; Bank of South Pacific Tonga (Formerly Westpac Bank of Tonga) v Tricia Emberson [2016] NSWSC 383.

[9] Rule 53.3(i) UCPR (NSW).

[10] The Act.

[11] Rule 53.2 of the UCPR (NSW).

[12] Section 6(4) of the Act.

[13] Section 15 of the Act.

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