Our globalised markets allow Australian businesses to enter into many legal relationships, quite often with parties based overseas. When it comes to litigation, this makes the enforcement of judgments increasingly difficult. Not only must a business determine whether they have a valid cause of action, but they also need to know whether it is worth fighting for it in court as the costs of enforcing an Australian judgment overseas may be more than expected. If you’ve already gone through the process of obtaining a judgment in Australia, here are a few common points that you need to consider before an Australian judgment is enforced overseas under the Foreign Judgments Act 1991 (Cth).
It’s About the Money
A court order that is equitable in nature, for example, an estoppel, specific performance or an injunction, are commonly unenforceable overseas. The judgment then needs to be a money order, for example, there is a debtor based in Hong Kong who owes you money. Once it is enforced in Hong Kong, you will be able to use the enforcement mechanisms in Hong Kong to get the money paid back.
The Final Straw
You may have received a judgment in Australia, but have any subsequent proceedings commenced that may have an impact on the judgment, for example, an appeal? If this is the case, the judgment may not be deemed as final and conclusive, and you may encounter more difficulties trying to enforce the judgment overseas.
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Conflicts With Domestic Policy
Although the Foreign Judgments Act 1991 (Cth) provides for a smoother transition in enforcing judgments abroad through reciprocal arrangements, many of these courts review Australian judgments to confirm they are consistent with their domestic policies. Although the overseas court may not hear the matter and evidence in full, the Australian judgment cannot be enforced if it in some way conflicts with domestic laws and domestic public policy.
Where to From Here
The countries which Australia has reciprocal arrangements include New Zealand, Canada, France, Germany, Hong Kong, Japan, Singapore and the UK, to name a few. It will be useful to keep the above points in mind when commencing any litigious proceedings overseas and it would be prudent to get advice from lawyers who practice within that jurisdiction and who can assist with drafting any submissions you need to make to enforce the judgment.
If you have any questions about enforcing Australian judgments abroad, LegalVision’s dispute resolution lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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