Enforcement of foreign judgments
Foreign judgments, that is judgments pronounced by a judicial tribunal other than a New South Wales tribunal, are recognised and enforced by New South Wales courts subject to certain specific requirements.
The requirements for enforcement at common law are conveniently set out in Chs 9 and 11 of Nygh’s Conflict of Laws in Australia, 10th edn, 2019, LexisNexis, Sydney.
It is not proposed to deal with the common law position in this section as, for practical purposes, the field is now covered by two legislative provisions. The statutory regime applies where a country has been designated as a jurisdiction of substantial reciprocity under the Regulations to the Foreign Judgments Act 1991 (Cth). For example, decisions of Chinese courts may be enforceable in Australia under the common law procedure for the enforcement of foreign judgments: see Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435 at –. Certain exceptions are referred to below at [9-0770].
Since 10 April 1993 any judgment given in Australia including in the external territories, before or after that date, must be enforced under Pt 6 of the Service and Execution of Process Act 1992 (Cth).
Judgments given outside Australia must be enforced under the Foreign Judgments Act 1991 (Cth) if they fall within the scope of that Act: s 10.
Certain New Zealand judgments can only be enforced in accordance with the provisions of the Trans-Tasman Proceedings Act 2010 (Cth) as to which see “Trans-Tasman proceedings” at [5-3580]–[5-3650].
[9-0710] The Service and Execution of Process Act 1992 (Cth)
The Act extends to territories including external territories: ss 5, 7.
Upon lodgment of a sealed copy of a judgment, or a fax in the appropriate court of another State the proper officer of that court must register the judgment: s 105(1).
Subject to what follows, the judgment has the same force and effect as if the judgment had been made by the court in which it is registered: s 105(2)(a).
It may, subject to ss 106 and 108, give rise to the same proceedings by way of enforcement as if made in that court: s 105(2)(b).
Section 106 provides that the court may, on application, order that proceedings for enforcement not be commenced until a specified time or be stayed for a specified period: s 106(1). Such an order must be subject to conditions that, within a period specified in the order, there be an appropriate application for relief and that the application be prosecuted in an expeditious manner: s 106(2)(a). Appropriate relief is an application to set aside, vary or appeal against the judgment made to a court with jurisdiction in the State where the judgment was given: s 106(3). The court may also impose other conditions including provision of security: s 106(2)(b).
This section supports the view, considered the better one, that the court has no jurisdiction to vary the original judgment: see Bell v Bell (1954) 73 WN (NSW) 7.
Section 108 provides that interest is payable as in the State of the judgment, and that the judgment creditor must satisfy the court in the enforcement proceedings as to the appropriate amount.
If the copy of the judgment is lodged by fax, a sealed copy is to be lodged within 7 days after the fax is lodged: s 105(3). If that is not done, a proceeding to enforce the judgment is not to be commenced or continued without the leave of the court until the sealed copy is lodged: s 105(4).
A judgment is capable of being enforced only if, and to the extent that, at the time when the proceeding for enforcement is taken, the judgment is capable of being enforced in or by the original court or another court in that State: s 105(5).
The appropriate court means, if the original court were a Supreme Court, the Supreme Court, otherwise the court by which relief as given by the judgment could have been given. If there is more than one such court, the one of more limited jurisdiction is the appropriate court. If there is no such court, the Supreme Court is the appropriate court: s 105.
Costs of enforcement are provided for in s 107.
Section 109 provides that the court must not, merely because of the operation of the rule of private international law, refuse to permit proceedings by way of enforcement to be taken or continued.
[9-0720] Procedure — Supreme Court
An application under s 105(4) is required to be commenced by Summons: SCR Pt 71A r 2. The summons need not be served unless the court otherwise orders: Pt 71A r 4.
An affidavit must be filed, sworn not more than 14 days before proceedings for the enforcement of a registered judgment are taken, stating that the judgment is capable of being enforced and the extent to which the judgment is capable of being enforced in or by the original court or another court in that State: Pt 71A r 6.
The court may notify the Sheriff of any change in the rate of interest: Pt 71A r 6(2).
Costs and expenses under s 107(1) shall be assessed by the court. This may be done without service of the relevant affidavit, in the absence of the public and without attendance by the plaintiff: Pt 71A r 7. The supporting affidavit must contain particulars of the costs and expenses claimed and state the basis upon which they are claimed: Pt 71A r 7(2).
[9-0730] Procedure — District and Local Courts
In proceedings for the enforcement of a registered judgment the court will require evidence that the judgment is capable of being enforced and of the extent to which it is capable of being enforced.
Evidence may also be required on cost and interest issues.
[9-0740] Foreign Judgments Act 1991 (Cth)
For a fuller treatment see Conflict of Laws, above, Ch 10.
This legislation does not apply to the enforcement of interstate judgments. However, a duly registered judgment under the Act may be registered in the Supreme Court of another State or Territory under Pt 6 of the Service and Execution of Process Act 1992 (Cth).
The legislation applies to the superior courts of specified countries: s 5(1). If the superior courts are specified as such they are taken to be superior courts, however, failure to specify a particular court does not imply that the court is not a superior court: s 5(2). The legislation also applies to specified inferior courts of those countries: s 5(3).
For a list of the specified countries and courts, see Foreign Judgments Regulations 1992, as amended.
The judgment to be enforced must be an enforceable money judgment that is final and conclusive and was given in a superior court of a country in relation to which the legislation applies or an inferior court to which it applies: s 5(4).
A judgment is taken to be final and conclusive even though an appeal may be pending against it or it may still be subject to appeal: s 5(5).
The legislation provides for extension by regulation to prescribed non-money judgments of specified countries, however, no such regulation has been made.
Judgments for taxes, fines and penalties are excluded except in relation to certain New Zealand and Papua New Guinea tax matters. See Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd (2014) 85 NSWLR 404.
For the registration of a foreign judgment against a foreign State, or a separate entity of a foreign State, see the Foreign States Immunities Act 1985 (Cth), s 11. For a detailed discussion of the application of the Foreign States Immunities Act 1985 (Cth) to proceedings under the Foreign Judgments Act 1991 (Cth), see Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31.
A plaintiff who has obtained a judgment of the relevant kind may apply to the Supreme Court for registration of the judgment: s 6(1). The application must be made within 6 years after the date of the judgment or the determination of any appeal: s 6(1).
Conflict of Laws at p 201 states that this period may be extended under s 6(5), however it is arguable that s 6(5) applies to an application under s 6(4), as to which see below, and not to s 6(1).
Subject to the Act and proof of matters prescribed by Rules of Court the Supreme Court is to order the judgment to be registered: s 6(3).
The Act provides that the judgment is not to be registered if, at the date of the application, it has been wholly satisfied, or it could not be enforced in the country of the original court: s 6(6).
UCPR r 53.3 sets out the evidence required in support of an application for registration. The application is made by summons joining the judgment creditor as plaintiff and the judgment debtor as defendant: r 53.2. Unless the court otherwise orders the summons need not be served: r 53.2(3).
When making the order for registration the court must specify the period in which an application may be made to set the registration aside: s 6(4). That period may be extended: s 6(5).
The registered judgment may be enforced and carries interest as if the judgment had originally been given and entered in the Supreme Court on the date of registration: s 6(7).
Rule 53.6(1) provides that a notice of the registration must be served on the judgment debtor. Service must be personal except where the judgment debtor has entered an appearance, is in default of appearance or the court otherwise orders. The notice of registration must inform the judgment debtor of his right to apply to set aside the registration or seek a stay of the judgment: r 53.6(3).
Once registered and subject to allowing time for an application to set aside to be made and determined, the judgment may be enforced as a judgment of the court: r 53.8. Before any step is taken for enforcement, an affidavit of service of the notice of registration must be filed or the court otherwise satisfied of service: r 53.8(2).
An application to set aside should be made by notice of motion. Section 7(2)(a)(i)–(xi) provides that the court is obliged to set the registration aside if it is satisfied:
that the judgment is not, or has ceased to be, a judgment to which this Part applies; or
that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or
that the judgment was registered in contravention of this Act; or
that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or
that the judgment was obtained by fraud; or
that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or
that the rights under the judgment are not vested in the person by whom the application for registration was made; or
that the judgment has been discharged; or
that the judgment has been wholly satisfied; or
that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy; …
The court may set the registration aside if it is satisfied that the matter in dispute had been the subject of a final and conclusive judgment by a court having jurisdiction in the matter before the judgment was given: s 7(2)(b).
As to the question of jurisdiction, reference should be made to the criteria set out in s 7(3)–(5).
[9-0760] Stay of enforcement of registered judgment
If the court is satisfied that the judgment debtor has appealed, or is entitled and intends to appeal, the court may order a stay: s 8(1). If the appeal has not been made, the court must specify a time for it to be made: s 8(1). A condition of pursuing the appeal in an expeditious manner is imposed (s 8(3)), and other conditions may be imposed: s 8(4).
Non-money judgments are not, presently, covered by the legislative scheme, and must be enforced at common law. See Conflict of Laws, above. Also see s 104 of the Family Law Act 1975 (Cth).
Family Law Act 1975 (Cth) s 104
Foreign Judgments Act 1991 (Cth) ss 5, 6, 7, 8, 10
Foreign Judgments Regulations (Cth) 1992
Foreign States Immunities Act 1985, s 11
Service and Execution of Process Act 1992 (Cth) ss 5, 7, Pt 6
Trans-Tasman Proceedings Act 2010 (Cth)
SCR Pt 71A
UCPR Pt 53
A Bell, “Private international law in practice across the divisions: some recent developments and case law” (2020) 14 TJR 229
M Davies et al, Nygh’s Conflict of Laws in Australia, 10th edn, 2019, LexisNexis, Sydney
D Butler, “Enforcement of foreign judgments: does an issue estoppel arise from a foreign court’s determination of its own jurisdiction?” (2019) 93 ALJ 558.