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:
Part 1 – Legislation | Part 6 – Examination of the foreign judgment |
Part 2 -Bringing a claim for enforcement | Part 7 – Awards and security for appeals |
Part 3 – Opposition – (this article) | Part 8 – Enforcement and pitfalls |
Part 4 – Requirements for recognition | Part 9 – Update and trends |
Part 5 – Jurisdiction of the foreign court |
Part 3
Part 3 examines how recognition and enforcement of a foreign judgment may be resisted in Australia, including the statutory grounds for setting aside registration, the common law defences available to a judgment debtor, and the limited circumstances in which injunctive relief may prevent enforcement proceedings.
Defences – can a defendant raise merits-based defences to liability or to the scope of the award entered in the foreign jurisdiction, or is the defendant limited to more narrow grounds for challenging a foreign jurisdiction?
- FJA
The FJA prescribes a time limit to st aside a registered judgment upon the court’s discretion. Under the FJA, a court can set aside registration of a foreign judgment if it is satisfied that:- the judgment is not a judgment to which the FJA applies;
- the judgment was registered for a greater amount than the amount payable at the date of registration;
- the judgment was registered in contravention of the FJA;
- the original court had no jurisdiction in the case;
- the judgment debtor did not receive sufficient notice of the proceedings;
- the judgment was obtained by fraud;
- the judgment has been reversed on appeal or otherwise set aside by the original court;
- the rights under the judgment are not vested in the person by whom the application was made;
- the judgment has been discharged or wholly satisfied; or
- the enforcement of the judgment (excepting judgments for the payment of New Zealand tax) would be contrary to public policy.
Alternatively, the application can be brought in another Australian court where the registration of the foreign judgment was registered according to the SEPA.
- TTPA
The TTPA stipulates that Australian courts must set aside a New Zealand judgment only where:- the judgment conflicts with public policy;
- registration is not covered by the TTPA; or
- the judgment relates to in rem rights to movable property or the subject matter is immovable property that was not located in New Zealand at the time of the proceeding in the original court or tribunal.
- FPEJA
The FPEJA provides the categories to set aside an application where a judgment:- is not in respect of the order made under section 12(1);
- was registered in the contravention of section 12;
- has been reversed on appeal or set aside in the original court; or
- has, since registration, been wholly satisfied in Australia or in any other country.
- Common law
At common law, a judgment debtor can challenge the enforcement of a foreign judgment if:- the judgment was procured by fraud;
- the judgment was procured in the absence of natural justice in the original court;
- the judgment was contrary to Australian public policy; and
- there is some other reason under the rules of private international law for why the judgment should not be enforced.
Injunctive relief – may a party obtain injunctive relief to prevent foreign judgment enforcement proceedings in your jurisdiction?
It is difficult to prevent enforcement proceedings in Australia. Courts will only refuse to entertain a foreign suit if it is shown that Australia is a ‘clearly inappropriate forum’ for that suit. However, a defendant might be able to successfully mount an anti-suit injunction against the Australian courts from the original jurisdiction.
Next, Part 4
Part 4 turns to the requirements for recognition, including the basic conditions for registration under the statutory regimes, the common law requirements where no statutory pathway applies, and the procedural standards that may affect whether an Australian court will recognise the foreign judgment.
If you are seeking to have a foreign judgment recognised in Australia, the threshold questions matter. We can help assess whether the judgment falls within the applicable regime, whether the registration requirements are satisfied, and whether any issue of jurisdiction, finality, notice, natural justice or public policy may affect the path to recovery. Our role is to move early, identify the correct route, and put the enforcement strategy on stable footing before time and leverage are lost.
Further Information
For further information about opposing recognition and enforcement of foreign judgments in Australia, statutory grounds for setting aside registration, common law defences, and enforcement strategy in cross-border disputes, please contact the author of this article.
