Our ‘Australian Enforcement of Foreign Judgments Guide’, is a practical resource for parties seeking to recognise and enforce foreign judgments and awards in Australia. It brings together the key legal principles and the strategic considerations that arise in cross-border enforcement and asset recovery.
The guide is presented as a series of focused sections, each designed to stand alone as a practical reference for live matters.
While the series is focused on Australian law, it is also relevant to overseas practitioners stakeholders involved in cross-border disputes, enforcement of foreign judgments and awards, asset recovery, and enforcement strategy.
Series roadmap
Across 9 parts, the series covers:
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Part 1 – Legislation |
Part 6 – Examination of the foreign judgment |
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Part 2 -Bringing a claim for enforcement – (this article) |
Part 7 – Awards and security for appeals |
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Part 3 – Opposition |
Part 8 – Enforcement and pitfalls |
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Part 4 – Requirements for recognition |
Part 9 – Update and trends |
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Part 5 – Jurisdiction of the foreign court |
Part 2
Part 2 examines how a claim for enforcement is brought in Australia, including limitation periods, the types of order that may be enforced, the competent courts, and the way recognition and enforcement operate under the statutory regimes and at common law.
Bringing a claim for enforcement
1. Limitation periods
Under the FJA and the TTPA, a judgment creditor must apply for registration within six years of the date of the foreign judgment. This may be extended at the court’s discretion.
At common law, the relevant limitation period for recognising and enforcing a foreign judgment varies depending on the state and territory in which the judgment is sought to be enforced. Generally, the relevant limitation periods are as follows:
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Jurisdiction |
Legislation |
Limitation period from the date when the foreign judgment becomes enforceable |
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Victoria |
15 years |
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New South Wales |
12 years |
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Queensland |
12 years |
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South Australia |
15 years |
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Tasmania |
12 years |
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Northern Territory |
12 years |
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Australian Capital Territory |
12 years |
Western Australia has no specific limitation period prescribed for enforcing foreign judgments. However, there is a general limitation period of six years, which applies from the time the cause of action accrued.
2. Types of enforceable order
FJA
The FJA permits the registration and enforcement of monetary judgments (except those relating to tax or punitive damages). The Governor-General can extend this permission to non-monetary remedies. To date, such permission has not yet been made.
TTPA
In addition to the ordinary monetary judgments, the TTPA allows for judgments relating to tax, interest and punitive damages to be recognised and enforced. The scope extends to non-monetary judgments from New Zealand subject to prescribed regulations.
Common law
At common law, foreign judgments are only enforceable if appeared in definite sum of money (with the exception of tax revenue and punitive damages). However, if a defendant has behaved with exceptional bad faith, punitive damages may be enforceable. Further, in some circumstances, non-monetary foreign judgments may be enforceable in equity.
UNCITRAL and the Cross-Border Insolvency Act 2008 (Cth)
In addition to remedies proceeding from foreign judgments, Australian courts have the capacity to assist with a foreign court’s proceedings. In cases of insolvency, the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency (1997) (the Model Law), which has been largely signed into Australian law (with a number of variations) under the Cross-Border Insolvency Act 2008 (Cth), entitles authorised persons in foreign insolvency proceedings to apply to the Australian courts in seeking to reorganise or administer the liquidation of a debtor’s assets (be it a personal or corporate insolvency). Upon recognition, Australian courts are entitled to grant relief to protect the assets of the debtor or in interests of the creditors and notably, to make orders to examine witness even where a claim have not been made.
Freezing orders
Australian courts are empowered to grant freezing orders where there is a real concern that the defendant might seek to hide or dispose of their assets to make itself judgment-proof. These can be made even before enforcement is sought in Australia, provided that the individual or their assets are located in Australia.
3. Competent courts
Ordinarily, a plaintiff seeking the enforcement of a foreign judgment in Australia should bring their claim before the superior courts (state supreme courts or the Federal Court). For certain money judgments and all non-monetary judgments given in a matter arising under the Commerce Act 1986 of New Zealand, the appropriate court is the Federal Court of Australia.
4. Separation of recognition and enforcement
Foreign judgments in Australia are recognised and enforced through the statutory regime being the FJA, TTPA and FPEJA or through common law principles.
FJA
Pursuant to the FJA, a judgment given in a jurisdiction listed in the FJR is registerable and, upon registration, is immediately recognised by the Australian courts. This process renders the legal issues at hand decisively concluded, but this does not affirm the existence of any underlying rights that the foreign forum might have found. Upon registration, a judgment is enforceable in the ordinary manner.
TTPA
Similarly, once a New Zealand judgment is registered and a notice of registration is given to the liable person, it can be enforced in Australia. If notice of registration is not given, the judgment cannot be enforced for 45 working days after registration.
FPEJA
Under the FPEJA, the Attorney General has discretionary powers to decide if antitrust judgments will be recognised and enforced within Australia in part or whole.
Common law
At common law, a foreign judgment must Hrst undergo tests for recognition. Upon satisfying those, the plaintiff may rely on the foreign judgment as instituting a debt owed by the defendant. Alternatively, the plaintiff might bring a new action in the Australian courts, estopping the defendant from raising any defences that have been previously used (or could have been used) in the foreign court.
Recognition and enforcement are governed by the particular rules of each court. For instance, in Common Law Division of the Supreme Court of New South Qales, a foreign judgment can be recognised through Hling a statement of claim. An ezuitable action, it can be commenced through summons in the Ezuity Division
Next, Part 3
Part 3 turns to opposition, including the principal grounds on which recognition or enforcement may be resisted, the available statutory and common law defences, and the limited scope for injunctive relief.
If you are seeking to enforce a foreign judgment or award in Australia, or to resist enforcement and protect assets, we can help you move quickly and defensibly. Our cross-border disputes work is designed to be commercial, evidence-disciplined, and aligned to the outcome that matters, whether that is recovery, restraint, leverage in settlement, or clean exit.
Further Information
For further information about enforcing foreign judgments in Australia, limitation periods, recognition and enforcement strategy, please contact the author of this article:
