Enforcing judgments overseas (and vice versa)
The success of enforcing judgments overseas will largely depend on the laws of country where the judgment is sought to be enforced. Sometimes the common law or a treaty allows enforcement but often it relies on a statutory arrangement.
Australia has reciprocal arrangements with various countries but as a general rule, to be enforceable in another jurisdiction, the judgment must be:
- for a fixed sum;
- consistent with the laws or public policies of the relevant country; and
- final and conclusive, and
you must provide a verified copy of the original Australian judgment, a translation of the judgment into the relevant language, an affidavit or similar providing at least details of the Australian proceedings, the relevant debt, details of the overseas debtor. There may be some other local matters to tend to as well.
Enforcing a foreign judgment in Australia
The Foreign Judgments Act 1991 (Cth) provides for the recognition and enforcement of foreign judgments in Australia.
To be enforceable, the foreign judgment must generally:
- be less than 6 years old;
- require the payment of money;
- be final and conclusive (even if subject to or likely subject to an appeal); and
- not have already been satisfied in the foreign jurisdiction.
Which countries have reciprocal arrangements?
The statutory schemes only apply to countries that have entered into reciprocal arrangements with Australia for the enforcement of each other’s judgments (See Schedule to Foreign Judgments Regulation 1992).
This includes British Virgin Islands, Cayman Islands, Fiji, France, Germany, Italy, Israel, Korea, Japan, Korea, Papua New Guinea, Singapore, Sri Lanka, Switzerland and the United Kingdom.
It does not include China (although technically Hong Kong is included), India, Russia or the United States of America.
New Zealand has special arrangements as set out below.
New Zealand arrangements
Part 7 of the Trans-Tasman Proceedings Act 2010 (Cth) allows New Zealand judgments of a broader nature to be enforced in Australia including some judgments that don’t solely relate to the payment of money.
This excludes things like probate, guardianship, and the welfare of minors.
Enforcement
Registration of the foreign judgment can be as simple as filing an application in a Supreme Court, where a judge will process the application (assuming it meets the requirements) in chambers in the absence of the other party and register it as a judgment in that court. The judgment debtor must be served with notice of the registration when the judgment is registered.
The registered foreign judgment can then be enforced like any other judgment such as by way of:
- garnishee notice
- writ for the levy of property
- creditor’s statutory demand against a company debtor
- issuing a bankruptcy notice against an individual debtor.
FURTHER INFORMATION
For further information in relation to enforcing a judgement, debt recovery, litigation or any other commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
