Which enforcement regime applies to Australian Judgments?
Australian Judgments can be transferred to the England and Wales Jurisdiction (which we refer to as “England”) under the Foreign Judgments (Reciprocal Enforcement) Act 1933.
Do you have the right kind of Judgment?
- It must come from a recognised court. See the list of recognised courts in Australia.
- The Judgment must be final and conclusive. A Judgment will not be final if it is being appealed, or if an appeal is pending. But there must be an active attempt to appeal. If the time to appeal has not yet come to an end, that in itself does not mean that an appeal is pending.
- The Judgment must be for a sum of money – not taxes, other fines or penalties. This means that other Judgments, such as injunctions are not transferable. The judgment must either be wholly or partially unpaid.
- The original court must have had jurisdiction to give the Judgment according to English law. For Australia this means:
- the debtor must either be resident in Australia/England, or has its principal place of business there if it is a company. Alternatively, the debtor has an office or place of business in Australia/England, and that office was central to proceedings. And/or proceedings concern land in Australia, but not land in other countries.
- the debtor agreed to the court having jurisdiction before the commencement of proceedings, voluntarily appeared in the proceedings, or was the claimant or counter-claimant.
Questions Relating to Australian Judgments
Is there enough time to register the judgment?
Registration of Australian Judgments in England is subject to a limitation period.
The Judgment must be registered within six years of the date it was granted.
What is the procedure to register your Judgment?
To register your Judgment, you must make an application to the High Court.
You can either let the debtor know that you are making the application, or make it “without notice” and obtain your registration without his/her knowledge.
What information do you need to include in your application?
- Your name and address for service in England (we will provide this for you).
- The name of the Judgment Debtor and his or her address, or place of business for service (if you have this information available).
- The grounds for your application for enforcement – the Foreign Judgments (Reciprocal Enforcement) Act 1933.
- The sum that is owed to you.
- A calculation of the interest claimed in accordance with the rules of the Australian courts.
- The original Judgment or a certified copy.
- A witness statement from you to:
- Confirm that your Judgment is a monetary Judgment (that you are owed a sum of money).
- Confirm that the Judgment would be enforceable in Australia.
- Confirm that the Judgment cannot be set aside.
- Confirm that Section 5 of the Protection of Trading Interests Act 1980 does not apply to your Judgment. (see the link here)
The registration order and service on the Debtor
The Registration Order will set out the following:
- Full particulars of the original judgment.
- Your name and address for service within the jurisdiction (we will provide this).
- The Judgment Debtor’s name and address for service within the jurisdiction.
- Provide details to the Judgment Debtor concerning their right to make an application to set aside the registration.
- The time period in which the set aside application can be made (14 to 28 days).
- That no procedures to enforce the Judgment will be used before that period has come to an end.
Service in the UK
The Registration Order when granted by the court must be delivered to/served on the Debtor either:
-
- Personally (if an individual),
- By using one of the methods set out in the Companies Acts 2006 (if the Debtor is a company)
- In a manner directed by the court.
Service in Australia
We will send the REgistration Order back to you, for you to serve on the Debtor.
Can the Judgment Debtor apply to set aside the Registration Order?
Yes. The Judgment Debtor can apply to have the Registration Order set aside within the period set out in the Order. You should keep in mind that the Court can extend this time period. We recommend a period of 14 or 28 days from service.
Possible grounds for seeking to set aside a Registration Order are as follows:
- that the Judgment was registered either incorrectly or using the inappropriate regime.
- that the court in which the original Judgment was granted, did not have the jurisdiction to finalise matters.
- that the Judgment was obtained fraudulently.
- that the Debtor did not have sufficient time to prepare his or her defence for the proceedings.
- that enforcing the Judgment would not be in line with English public policy.
Claiming Interest and Costs
Your Australain Judgment will attract interest at a rate set by the court that gave that order.
We will calculate that interest up to the date of the Regstration Order. Thereafter, interest on the debt will be charged at the rate that accrues on all English Judgments, which is 8%.
The application for a Regstriation Order will also include a request for payment of your costs for that application. We will file a schedule of the costs incurred with the court. This will then be assessed by a High Court Master. It is the Master that will decide i) if you will receive costs and ii) if so how much. Unfortunately, we cannot be specific as to how much of your costs you will recover. It is a decision that the Master makes.
In certain cirucmstacnes, most frequently if the Debtor is a limited company, you can apply for the Debtor to put a sum into court to cover your costs of the Registration Order. This is called Security for Costs. This is of most importance if the Debtor makes an application to have the registration set aside which will be considered by the court at a contested hearing.
We will advise you on all matters concerning interest and costs throughout the process.