Summary Notes on Conflict Law : Foreign Enforcement Judgment

assalam & salam sejahtera

..................................Here is the notes...................................



CHAPTER : FOREIGN ENFORMENT JUDGMENT
è  RECIPROCAL ENFORCEMENT OF JUDGMENT ACT-REJA?
Ø  It provides for the registration & enforcement of the judgment granted by the superior courts of the relevant foreign jurisdiction, which is listed down in the 1st schedule of the REJA.
Ø  The countries which currently applying REJA are UK, Hong Kong, S’pore, Sri Lnaka, New Zealand, M’sia, India, & Australia.
Ø  For the countries that does not list down under REJA, common law principles are the guiding lines as the principles as the same with the one use in REJA.
Ø  Under REJA, a dec. of a superior court is registrable whether it acted at 1st instance / on appeal, unless such dec. is given pursuant to an appeal from a court which is not a superior court.

Ø  Superior court as per REJA include :
♥        H.Court of HK, S’pore & NZ.
♥        H. Court & District Court of Sri Lanka.
♥        H.Court of certain states in India.
♥        Supreme Court of Australia.
♥        H.Court of England & Northern Ireland, Court of Session in Scotland, Court of Chancery of the County Palatine of Lancaster & Durham.

Ø  Such dec. from the above court shall be registrable is it can meet this CONDITIONS  :
♥        The judgment is final & conclusive as between the parties.
♥        There is payable thereunder a sum of money, not being a tax / other charges of a like nature / a fine / other penalty ; &
♥        Being a judgment from a country added to the 1st schedule of REJA, it is given after the country is added to the schedule.

Ø  APPLCATION FOR REGISTRATION as per Order 67 of the Rules of the High Court 1980:
♥        Application must be made to the High Court by way of originating summons.
♥        The application must be supported with an affidavit.
♥        If the judgment is not in English, it must be translated & certified.
♥        The effect of registration is that a foreign judgment is treated as a judgment of the High Court of Malaya.

Ø  REGISTRATION :
♥        The order giving a permission to register the application is directed to the creditor.
♥        The order should state the period within which an application may be made to set aside the registration & shall contain a notification that execution on the judgment will not issue until after the expiration of that period.

Ø  GROUND TO SET ASIDE THE REGISTRATION :
♥       There has been a contravention with the REJA.
♥       The foreign court had no jurisdiction to  decide on the matter.
♥       Notice of proceedings was not served on the judgment debtor in sufficient time to enable him to defend & appear in the proceedings.
♥        Judgment was obtained by fraud.
♥        The enforcement of the judgment would contravene the public policy.
♥        Rights under the judgment are not vested in the hands of the applicant for registration.

Р PUBLIC POLICY CASES :
ü  ENG ANG CHIN v PANIN INTERNATIONAL CREDIT
·         FOC : The applicant was a M’sian who failed to pay debt in S’pore. Respondent obtained Order 11 to serve notice of writ to the Applicant to say that the resp. is filing a proceeding. App. At that time is in M’sia, but the case continue in S’pore. App. does not turn up in S’pore, making it as an ex parte trial. Resp. won the case & tried to register it under REJA. For that purpose, a private firm had issued the notice of writ to the app. The app. come with defence saying that the registration cannot be done as it vs the public policy.
·         ISSUE : Which part is vs the public policy?App. claimed that Order 11 was not served correctly as he said Order 65 should be used. O.65 said such issuance of writ shall be done by govt.
·         PRINCIPLE : Court agreed with app.’s argument as it is a sign of disrespecting the sovereignty of M’sian court, thus the judgment was not registerd & enforced.

ü  MALAYAN BANKING v NG MAN HENG
·         FOC : The  judgment is derived from S’porean court. The private firm sent a notice to writ by not using the govt.
·         ISSUE : The private govt., so no Order 65 used.

·         PRINCIPLE : O. 65 shall be given its ordinary meaning. This order is said to applicable when the govt. is asked to help to  serve the notice, and making it to be un-compulsory element to use govt. in issuing the notice. Rules of High Court is intended to be reciprocal between the countries.

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