If a foreign court has made a final judgment in your favour against an Australian debtor, you may be thinking about enforcing that judgment in Australia. One way you can do this is through common law enforcement. You will need to satisfy an Australian court that you meet four criteria in order for them to enforce a foreign judgment. This article explains each of these criteria in more detail. 

1. Australian Courts Must Recognise the Jurisdiction

In order to enforce a foreign judgment, an Australian court must recognise the international jurisdiction exercised by the foreign court. Jurisdiction means that the foreign court had the authority to make a decision in your matter.

The table below outlines three factors that may indicate international jurisdiction, with accompanying examples. The examples are based on a hypothetical scenario where an Australian court is considering enforcing a Canadian court’s judgment.

 

Indicators of Jurisdiction

Examples

The defendant is:

  • present in the jurisdiction;
The debtor:

  • was physically in Canada when personally served with the document that began your court action;
  • is a corporation which maintains a branch in Canada;
  • is a corporation which employs an agent with power to bind the company in Canada;
  • native to the jurisdiction; or
  • has Canadian citizenship or permanent residency rights;
  • submitting to the court’s jurisdiction.
  • enters an appearance in the foreign proceedings (e.g. they file a defence to your claim);
  • brings a cross-claim;
  • participates in the proceedings in any way; or
  • has signed a loan contract with you that states that a Canadian court has jurisdiction to settle contractual disputes.

 

2. The Foreign Judgment Must Be Final

A foreign judgment must be final for an Australian court to consider enforcing it.

A ‘final’ judgment means that the foreign court has conclusively determined the issues in the judgment. It is different to an interlocutory order, where a court makes temporary orders that operate until a hearing (at which point the court will make final orders).

‘Final’ does not mean that there are no avenues for appeal available. Nor does it refer to the fact that no appeal has been made.

3. The Parties Must Be the Same

The parties in the Australian court proceedings must be the same as the parties to the foreign judgment.

However, this does not mean that in cases with multiple defendants, all defendants specified in the foreign judgment must also be defendants in the Australian enforcement proceedings. This is for practical reasons: some of the defendants may be located outside of Australia.

4. The Foreign Judgment Must Be For a Fixed Sum

An Australian court will only enforce a foreign judgment if it is for a quantified, or easily quantifiable, sum of money. Therefore, it cannot be:

  • speculative (e.g. dependent on certain events occurring); or
  • unclear.

Additionally, the judgment is only enforceable in Australia to the extent that the debt remains unsatisfied. This means that you cannot ‘double dip’ and receive more money than what is actually outstanding.

Key Takeaways

If a foreign court has made a final judgment in your favour for a fixed sum of money, you may be able to enforce that judgment in Australia. However, if you seek enforcement by common law, you must satisfy an Australian court that you meet four key criteria:

  1. Australian courts must recognise the jurisdiction of the foreign court;
  2. the foreign judgment must be final;
  3. the parties must be the same; and
  4. the foreign judgment must be for a fixed sum.

If you need legal advice to figure out what foreign enforcement options are available to you, get in touch with LegalVision’s debt recovery lawyers on 1300 544 755, or fill out the form on this page.

Kirstie Le Lievre
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