Reading time: 4 minutes

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.

Webinars

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer