Enforcement of Foreign Judgments Rebecca Chew 6 June
OVERVIEW ON ENFORCEMENT OF FOREIGN JUDGMENTS IN SINGAPORE (a) Reciprocal Enforcement of Commonwealth Judgments Act (Chapter 264) (b) Reciprocal Enforcement of Foreign Judgments Act (Chapter 265) (c) Action on the Foreign Judgment
Reciprocal Enforcement of Commonwealth Judgments Act ( RECJA ) (a)to cater for the registration of judgments and awards in Singapore and other parts of the Commonwealth. (b)the application should be made within 12 months or such period as may be allowed by the Court (c)the Rules for registration of the Foreign Judgment are set out in Order 67 of the Rules of the Rules of Court.
Reciprocal Enforcement of Foreign Judgments Act ( REFJ ) (a) To make provisions for enforcement in Singapore of judgments and awards given in foreign countries which is not part of the Commonwealth. (b) The judgment or award to be enforced must be that of a superior court of the foreign country for a sum of money not in the nature of taxes or other charges of a like nature such as fines etc.
(e) The application for registration must be made within 6 years after the date of the judgment or award (f) Execution of the registered judgment shall not be issued so long as it is competent for any party to make an application to have the registration set aside. (g) The REFJ is only applicable to Hong Kong SAR.
Action on the Foreign Judgment at Common Law (a) A fresh suit would be instituted by the Judgment Creditor on the Foreign Judgment Debt in the jurisdiction where the Judgment Creditor would wish to levy execution on the said judgment. (b) The suit instituted by the Judgment Creditor will not be premised on the underlying transaction but will be based on the judgment debt.
(c) In the circumstances, the Judgment Creditor would usually apply for summary judgment to be entered against the Judgment Debtor based on the terms of the Foreign Judgment plus legal costs incurred in the proceedings.
Practical Considerations in deciding whether to proceed with registration of foreign judgment or action on the foreign judgment (a) The Jurisdiction from which the Foreign Judgment originated (b) The applicability of the Foreign Judgment in respect of the RECJA and REFJ. (c) Whether there was a previous application to register the Foreign Judgment has been refused
(d) When seeking to enforce the Singapore Judgment in the Foreign Jurisdiction, legal advice should be sought from the lawyers of that jurisdiction to ensure that action may be commenced by the Judgment Creditor on the Singapore Judgment in the Foreign Jurisdiction
Brief Outline on Procedure for Registration (a) The procedure is set out in Order 67 of the Rules of Court. (b) Proceed by way of an ex parte originating summons with supporting affidavit exhibiting the Foreign Judgment. (c) Order giving leave to register the Foreign Judgment must be served on the Judgment Debtor stating inter alia a period within which the registration may be set aside.
(d) Apart from the Order giving leave to register, the Notice of Registration of the Foreign Judgment must be personally served on the Judgment Debtor unless the court otherwise orders. (e) If an application is taken out to set aside the registration of the Foreign Judgment, the court will not allow issue of the execution until the application is finally determined.
Common grounds relied on by Judgment Debtor to set aside registration of the Foreign Judgment (a) The Foreign Judgment was obtained by Fraud (b) The Judgment Debtor did not receive notice of the foreign proceedings even though it may have been properly served on the Judgment Debtor (c) Enforcement of the Foreign Judgment would be contrary to public policy in the local jurisdiction.
Re Tan Patrick, ex p Walter Peak Resource Ltd (in receivership) Facts of the Case :- (a) The Judgment Creditor had obtained a Judgment in New Realand and registered it in Singapore under the RECJA. A bankruptcy notice was issued against the Judgment Debtor. As the Judgment Debtor did not comply with the Bankruptcy Notice, the Judgment Creditor issued a Creditor s Petition.
(b) The Judgment Debtor challenged the petition on the ground that a Foreign Judgment registered under the RECJA could not form the basis for the Singapore court s bankruptcy jurisdiction. The wording of Section 3(3) of the RECJA is limited to execution and bankruptcy proceedings are not in the nature of execution proceedings. The Views of the Court:- (a) The ambit of Section 3(3) should not be limited as contended by the Judgment Debtor.
(b) The wording in RECJA is narrower than that in the REFJ since Section 4(2) of the REFJ covers any proceedings. In order to ensure consistency between the RECJA and the REFJ, the court decided to adopt the same approach for both the RECJA and the REFJ. (c) The court disallowed the Judgment Debtor s application to set aside the bankruptcy proceedings.
Hong Pian Tee v. Les Placements Germain Gauthier Inc [] 2 SLR 81 Facts of the Case:- (a) Les Placements was a Canadian company that entered into a loan agreement with Wiraco, a Singapore company. At the time of the loan, the President of Les Placements, one Germain Gauthier ( Germain ) agreed on behalf of the company to lend Wiraco C$350,000.00 and Hong Pian Tee ( Hong ) gave a personal guarantee to ensure repayment of the loan. Wiraco defaulted and Les Placements commenced legal action in Canada.
(b) The Canadian Court rejected Hong s defences and held both Wiraco and Hong liable to Les Placements for the full claim. Hong and Wiraco appealed against the decision and the Court of Appeal of Quebec disallowed the appeal. (c) Les Placements commenced writ action in Singapore against Hong and applied for summary judgment to be entered against Hong on the terms of the Canadian Judgment. At the hearing before the assistant registrar, the court gave unconditional leave to defend.
(d) The matter was brought before Choo Han Teck JC on appeal and he granted judgment in favour of Les Placements. Hong then proceeded to appeal to the Court of Appeal. (e) Hong s position was that the Canadian Judgment was obtained by fraud. He contended that where fraud has been alleged, the court must investigate into the fraud and he was entitled to have the issue of fraud re-litigated in Singapore even if there was no new material.
The views of the Court (a) That there were two distinct views as to how a domestic court should treat a Foreign Judgment where fraud is raised in relation to the Foreign Judgment. One being the English position enunciated in the Abouloff case ( Abouloff View ) and the other being the Canadian approach in the case of Ralli v. Angullia ( Ralli View ). (b) The Abouloff View has less to commend itself as it would only encourage endless litigation. It is of paramount importance that there should be finality.
(c) It is vitally important that no court of one jurisdiction should pass judgment on an issue already decided by a competent court of another jurisdiction. (d) The court favoured the approach adopted in the Ralli View as it is more in line with principles of conflict of laws and treats Foreign Judgment in the same way as domestic judgments. It avoids any appearance that the domestic court is sitting in an appellate capacity over a final decision of a foreign court.
(e) Where an allegation of fraud had been considered and adjudicated upon by a competent foreign court, the Foreign Judgment may be challenged on grounds of fraud only where fresh evidence has come to light which reasonable diligence on the part of the Judgment Debtor would not have uncovered and the fresh evidence would have been likely to make a difference in the eventual result of the case.
(e) The court also took the view that even if they had taken note of the evidence tendered by Hong in his contention on the issue of fraud, it would not have changed the outcome reached by the Canadian courts. The court placed their emphasis on the fact that moneys were transferred from Les Placements to Wiraco.
SOME PRACTICAL ISSUES WHEN ENFORCING DOMESTIC JUDGMENTS IN SOME JURISDICTIONS (a) In Malaysia - The Currency of the Judgment Debt - Claim on Interest after date of Judgment - The Public Policy Argument (b) In the Peoples Republic of China - Is the domestic judgment enforceable there?
(c) In Hong Kong SAR - The timing of the application? - The Interest rate claimable after Judgment
Enforcement of Foreign Judgments Rebecca Chew 6 June