Requirements for enforcement of Foreign Judgements in New Zealand

A judgment in personam of a foreign Court will be enforced in New Zealand if all of the following three conditions are satisfied:

I. if the foreign Court’s jurisdiction over the judgment debtor is recognised by New Zealand law.

a. if the judgment debtor was a body corporate and resident in the country at the time proceedings were instituted, and if the debtor was an individual if he or she were present in the country at that time.

b. if the judgment debtor was the plaintiff, or counterclaimed in the proceedings in the foreign Court thereby submitting to the jurisdiction ;

c. if the judgment debtor submitted to the jurisdiction of the foreign Court by voluntarily appearing in the proceedings

d. if the judgment debtor had agreed before the commencement of the proceedings to submit to the jurisdiction of that Court, or of the Courts of that country, in respect of the subject-matter of the proceedings. Such agreement may be by letter, subsequent to the dispute arising and may be oral

II. if the judgment is for a debt or a definite sum of money. A foreign judgement must not have left any discretionary element in its order but must not be for a sum payable in respect of taxes, or other charges of that nature, or in respect of a fine or other penalty ;

III. if the judgment is final and conclusive. The foreign Court need not be a superior Court.

At common law, a foreign Court will not be treated as having jurisdiction only on the ground of the judgment debtors nationality; or is domiciled; or possession of property in the foreign country; or resident in the foreign country at the time the cause of action arose as opposed to present; or would under New Zealand law be subject to New Zealand jurisdiction in corresponding circumstances; or was personally served outside the foreign country with the process of the foreign Court in accordance with the law of that country. What amounts to presence within the jurisdiction is physical presence in a literal sense. For an individual residence is not necessary. For a corporation the test appears to be whether the corporation was active in the country of the court rendering judgement and in the case of a commercial enterprise whether it was doing business in that country. It is not enough in the case of a corporation that some individual with an official role or office in the corporation was present in the country. As an aside, a new Zealand court will provide international assistance to overseas courts under Section 192 of the Evidence Act 2006. Evidence may be taken in New Zealand for the purpose of a foreign court for the purpose of civil or criminal proceedings in a foreign court. If a foreign Court had jurisdiction to give judgment against the judgment debtor according to the relevant New Zealand conflict of laws rules, it appears that the judgment will not be unenforceable in New Zealand by reason only that the foreign Court lacked jurisdiction under the law of its own country.

Recognition of judgements in Rem

A judgment in rem of a foreign court will be recognised or enforced in New Zealand only if both of the following criteria are satisfied:

I. the judgment must be final and conclusive;

II. A foreign court will be treated as having had jurisdiction to grant the judgment in rem if the subject-matter of the proceedings in which the judgment was given was movable or immovable property situated in the country of the foreign Court at the time of the proceedings.

The recognition or enforcement of the foreign judgment may be opposed on the grounds that:

a. The judgement was obtained by fraud. Or

b. The Judgement was contrary to public policy. It is not contrary to public policy to enforce a judgment merely because the cause of action on which it was obtained is not known to New Zealand law nor because exemplary damages have been awarded in circumstances in which they would not be available under New Zealand law. 

c. The proceedings were contrary to natural justice. Objection taken by the defendant to proceedings in New Zealand was or could have been taken in the foreign country must be taken into account in determining whether there has been a substantial injustice, but is not of itself decisive. Or

d. The matter is res judicata or there is an issue estoppel. A foreign judgment will not be recognised if is irreconcilable with an earlier New Zealand judgment between the same parties.  

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