A business’ network now crosses several international borders, and it is becoming increasingly common for an individual or company to enter into agreements or hold assets in multiple countries. How to enforce a foreign judgment is then helpful to understand, particularly when the judgment debtor no longer resides in the country, or when the judgment debtor has assets or money in another country that could satisfy the debt. We set out below three ways that you can enforce and register a foreign judgment in Australia.
What Factors Do I Need to Consider?
Enforcing a foreign judgment in Australia depends on:
- The country where the judgment was issued; and
- The type of judgment that was issued (e.g. monetary or non-monetary judgment).
In Australia, there are three main ways to enforce a foreign judgment:
- Statutory enforcement;
- Enforcement through a treaty; or
- Enforcement under common law.
1. Enforcing a Judgment Through Statutory Enforcement
You should first determine whether you can enforce the judgment in Australia under the Foreign Judgments Act 1991 (Cth) (FJA). Under the FJA, if parties entered into a judgment outside Australia, you can register the judgment in Australia to enforce against the debtor (the individual or company owing the money). Although the FJA is the easiest way to register a foreign judgment, it has a limited application.
What Judgments Can Be Registered Under the FJA?
A foreign judgment must satisfy the following conditions before its registration:
- The judgment must be final and conclusive;
- It must be an enforceable ‘money judgment’(i.e. a judgment for the payment of money);
- The parties to the registration must be the same as the parties to the judgment; and
- The judgment must be from a prescribed court of a country listed in the Schedule of the Foreign Judgments Regulations 1992 (Cth).
Under the FJA, a party must make an application to register a foreign judgment within six years of the judgment date.
2. Enforcement Under Other Legislation and Treaties
If the foreign judgment is unenforceable under the FJA, parties can try enforcing the judgment under a bilateral treaty that Australia is a party to. For example, Australia and the UK are parties to the agreement Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters 1994. Likewise, judgments from New Zealand are registerable under the Trans-Tasman Proceedings Act 2010 as both Australia, and New Zealand are parties to this act.
3. Common Law Enforcement
If parties cannot register the judgment under the FJA, and a bilateral treaty does not apply to the particular country, the judgment may be enforced under the common law. Enforcing a foreign judgment under common law commences in the same way as any other court proceedings. Determining what court to initiate proceedings in depends on various factors including the monetary amount sought and the location of assets that can be used to satisfy the judgment.
Before enforcing a foreign judgment under the common law, the Court must be satisfied that the judgment is the following:
- Final and conclusive;
- For a definite sum of money;
- Parties to the Australian proceedings must be the same as the parties to the foreign judgment; and
- The foreign court had jurisdiction over the judgment debtor.
Questions? Get in touch with our disputes lawyers.