Introduction
Challenging foreign judgments in Australia involves a formal process governed by the Foreign Judgments Act 1991 (Cth). If the debtor lives or holds assets in Australia, you must register the foreign judgment first. Enforcement cannot begin until registration occurs. Registration gives the foreign judgment domestic effect, allowing the creditor to recover the debt through local enforcement processes.
The governing legislation is the Foreign Judgments Act 1991 (Cth),[1] which establishes the legal framework for recognising and enforcing certain foreign judgments. The Foreign Judgments Regulations 1992 (Cth) prescribe a list of reciprocating jurisdictions that is, countries whose court decisions are eligible for registration in Australia.[2]
This article explains how to register a foreign judgment under the Act. It outlines how a debtor may challenge registration. It also covers when enforcement of a judgment may be stayed. Finally, it examines key authorities that demonstrate how Australian courts apply these provisions in practice.
Key Requirements to Register a Foreign Judgment:
In Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd, the NSW Court of Appeal confirmed that registration of a foreign money judgment under s 6 of the Foreign Judgments Act requires satisfaction of four primary criteria. [3]
- Reciprocating jurisdiction: The judgment must come from a court in a country listed in Schedule 1 to the Foreign Judgments Regulations 1992 (Cth).
- Final and conclusive: The judgment must finally resolve the parties’ rights and obligations. It can still be final even if subject to appeal.
- For a definite sum of money: The judgment must order payment of a specific monetary amount and not relate to taxes, fines or penalties. The Court confirmed that a quantified costs order meets this threshold. [4]
- Filed within six years: The registration application must be made within six years of the judgment or last appeal. [5]
If these conditions are satisfied, the court registers the judgment unless the debtor proves a valid objection under s 7(2) of the FJA, such as: [6]
- the foreign court lacked jurisdiction;
- the judgment was obtained by fraud;
- the debtor was denied natural justice;
- the judgment has been satisfied or reversed; or
- enforcement would be contrary to Australian public policy.
The debtor in Quarter Enterprises raised several of these defences. All were rejected. The Court found that the foreign court had jurisdiction, there was no fraud, and the debtor had sufficient notice and opportunity to respond.[7] Once registered, the foreign judgment becomes enforceable in Australia as though it were a judgment of an Australian court.
Key Grounds to Set Aside Registration
Under s 7(2) of the Foreign Judgments Act 1991 (Cth), courts must set aside judgments if specific defects exist. Common grounds include lack of notice at the start of proceedings.
Another ground is that the judgment was obtained through fraud.[8] To succeed, the debtor must prove they did not receive notice in time and did not appear. In Nyunt v First Property Holdings Pte Ltd, the Court said minor service defects are not enough. What matters is whether the debtor was genuinely denied a chance to respond. In Yin v Wu, the Court set aside a Chinese judgment due to service by public announcement. The debtor was denied a real opportunity to be heard by the foreign court, which breached natural justice. [9] Courts focus on fairness, not technicalities. If the debtor received actual notice but failed to appear, the court will still register the judgment.
Section 7(2)(a)(vi) recognises as an established ground that the party obtained the judgment by fraud. This includes both fraud in procuring the judgment (e.g. fabricated evidence) and fraud in the conduct of the proceedings. The threshold is high, as the debtor must show material fraud that would have affected the outcome. Australian courts require clear and convincing evidence mere allegations or tactical use of the claim will not suffice. [10]
When Debtors Successfully Stay Enforcement While Challenging Foreign Judgments in Australia
Under s 8(1) of the Foreign Judgments Act 1991, a court may stay enforcement where the debtor has appealed or intends to appeal the foreign judgment.[11] However, Australian courts require more than a mere assertion of intent. The court will only grant a stay if the appeal is bona fide, promptly pursued, and has reasonable prospects of success.
In Doe v Howard, the Supreme Court of Victoria refused a stay where the debtor claimed they intended to appeal overseas but had filed no notice and taken no timely steps.[12] Similarly, in Ainslie v Ainslie, the High Court reiterated that a stay application is not an opportunity to re-litigate the foreign case.[13] Courts will not revisit the merits of the foreign judgment only threshold issues like jurisdiction or procedural fairness justify intervention.
Case Study: Challenging Foreign Judgments in Australia – Kok v Resorts World at Sentosa Pte Ltd
The judgment debtor in Kok v Resorts World at Sentosa Pte Ltd sought to set aside registration of a Singapore High Court money judgment in Western Australia, claiming the Singapore court had misapplied substantive law. The WA Court of Appeal held that an application under s 7 of the Foreign Judgments Act 1991 (Cth) (“FJA”) does not permit a review of the foreign court’s reasoning. The Court emphasised that enforcement proceedings address only threshold issues such as jurisdiction, fraud, or denial of natural justice, and that a clear legal error by the foreign court does not affect registration.[14]
Because the appellant did not prove any statutory grounds under s 7(2), the Court dismissed the appeal. The Singapore judgment remained registered and enforceable.[15] The case confirms Australian courts will not re-litigate foreign disputes. Debtors must act promptly and in good faith when relying on limited defences under the Foreign Judgments Act 1991.
Summarising Key Principles for Successfully Challenging Foreign Judgments in Australia
Australian courts apply the Foreign Judgments Act strictly and are not a forum for re-arguing foreign disputes. The court will not allow a judgment debtor to re-litigate the merits of the original proceedings. The court will dismiss appeals disguised as objections.
Objections such as lack of notice or fraud must be genuine, raised promptly, and supported by clear evidence. Tactical delays, repeated affidavits, or appeals without substance do not prevent enforcement and may cause the court to order the debtor to pay the other party’s legal costs and interest on the original judgment. The court will only stay enforcement if a substantive foreign appeal is actively on foot. The focus of the court remains on procedural fairness rather than the correctness of the foreign judgment.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
[1] Foreign Judgments Act 1991 (Cth).
[2] Foreign Judgments Regulations 1992 (Cth) sch 1.
[3] Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3 [15]-[20]; Foreign Judgment Act (n 1) s 6.
[4] Ibid [18]; Ibid s 3(1).
[5] Ibid [17]; Ibid s 6(1).
[6] Ibid [19]; Ibid s 7(2).
[7] Ibid para [144]-[147].
[8] Foreign Judgment Act (n 1) ss 7(2)(a)(v); 7(2)(a)(vi).
[9] Yin v Wu [2023] VSCA 130 [75]–[85].
[10] [10] Doe v Howard [2015] VSC 75.
[11] Foreign Judgment Act (n 2) s 8.
[12] Doe v Howard (n 1) [89].
[13] Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381 [402].
[14] Kok v Resorts World at Sentosa Pte Ltd (2017) 323 FLR 95 [16] citing Godard v Gray (1870) 6 LRQB 139.
[15] Ibid [48].
