In a case that will be interesting to parties that regularly operate in overseas jurisdictions, this case involved an Australian court recognising a Singapore judgment and confirming key points about the recognition of foreign judgments generally.
Key points:
With the globalisation of commerce, it is important for Australian and international companies to be confident that judgments obtained in an overseas jurisdiction will be recognised and enforced by Australian courts.
Australian courts recognise the importance of clear and consistent rules allowing for foreign judgments to be enforced in Australia. The recognition of judgments from jurisdictions covered by bilateral treaties and the Foreign Judgments Act 1991 (Cth) (FJA ) will only be refused in narrow circumstances. Australian courts will not examine the merits of the foreign court’s decision, and will not be swayed by imprecise, generalised references to public policy.
Nyunt v First Property Pte Ltd
Background
In an era of widespread international commerce and travel, it is not uncommon for litigation to take place in a foreign court (e.g. in the jurisdiction where the conduct occurred), but for the successful party to seek to enforce the judgment in Australia, usually because that is where the other person - or their assets - is located. The enforcing party must have the foreign judgment registered by an Australian court, after which it has the same status in Australia as a judgment of an Australian court, and can be enforced through Australian courts accordingly. Questions often arise about the circumstances in which Australia will register a foreign judgment.
The NSW Court of Appeal recently confirmed established principles in relation to the registration of and setting aside of foreign judgments. In Nyunt v First Property Holdings Pte Ltd [2022] NSWCA 249 , the NSW Court of Appeal upheld a decision of the Supreme Court of NSW refusing to set aside the registration of a judgment by the High Court of Singapore.
First Property Pte Ltd and Michael Nyunt were parties to a joint venture agreement (JVA) which involved property development projects in Myanmar. The JVA was governed by Singaporean law and included a non-exclusive jurisdiction clause in favour of Singapore.
In 2015, First Property commenced proceedings against Mr Nyunt in Myanmar in relation to properties acquired by the joint venture company.
In 2016, First Property commenced proceedings and obtained default judgments against Mr Nyunt in the High Court of Singapore requiring Mr Nyunt to pay a sum of money. Mr Nyunt was aware of the Singapore proceedings but chose not to participate.
In 2017, First Property successfully registered the Singapore judgments in the Supreme Court of NSW under the Foreign Judgments Act 1991 (Cth) (FJA). Mr Nyunt commenced proceedings in the Supreme Court of NSW seeking to set aside the registration (which would prevent First Property being able to enforce the Singapore judgment in Australia). At first instance, Mr Nyunt attempted to set aside the registration of the Singapore judgment on the following grounds:
The High Court of Singapore did not have jurisdiction.
Mr Nyunt did not have sufficient notice of the proceedings in Singapore.
The Singapore judgment was obtained by fraud.
The registration of the Singapore judgment was an abuse of process.
Mr Nyunt was unsuccessful on all grounds in the Supreme Court.
Court of Appeal Decision
Mr Nyunt appealed to the Court of Appeal on the following grounds:
The Supreme Court of NSW ought to have given Mr Nyunt leave to introduce fresh evidence in the application to set aside registration of the Singapore judgment.
The registration of the Singapore judgment should have been set aside on public policy grounds because:
the matter was initially litigated but not fully resolved in Myanmar before First Property commenced proceedings in Singapore;
Mr Nyunt did not have sufficient notice of the Singapore proceedings because while he was served with a claim, it did not particularise the damages sought;
The Singapore court had no jurisdiction because First Property had elected to bring proceedings in Myanmar and parts of its claim fell outside of the non-exclusive jurisdiction clause in favour of Singapore.
In a unanimous decision, the Court of Appeal dismissed Mr Nyunt’s appeal. The Court of Appeal held that the primary’s judge exercise of judicial discretion in refusing leave to introduce fresh evidence was sound and difficult to challenge on appeal.
As to the fact that First Property pursued litigation in both Myanmar and Singapore, the Court of Appeal held that this did not give rise to any public policy or other reason not to register the judgment in Australia, finding nothing improper in First Property’s multi-jurisdictional strategy. The Myanmar proceedings involved real property and typically should be brought in the jurisdiction where the property is located. This should not prevent First Property from exercising its right to commence proceedings in Singapore in accordance with the non-exclusive jurisdiction clause. The Court explained that “the commencement of foreign proceedings will generally not be vexatious or oppressive where additional remedies are available beyond those attainable in the domestic form.”
The Court of Appeal also dismissed Mr Nyunt’s argument that he was denied procedural fairness as he did not receive sufficient notice of the Singapore proceedings. The Court of Appeal found that the notice given to Mr Nyunt was extensive and that while a figure for the unliquidated damages was not included in the statement of claim (because it fell to be assessed after a judgment on the merits), considerable particulars as to how the damages claim was to be formulated had been provided. The Court of Appeal found that a party does not have insufficient notice of proceedings where they are aware of the proceedings but not do not know the quantum of the claim.
As to Mr Nyunt’s argument on jurisdiction, the Court of Appeal agreed with the primary judge’s determination that the parties intended to submit to the jurisdiction of Singapore courts. Bell CJ held that that jurisdiction clauses ought to be interpreted broadly, particularly where parties did not specify the nexus to the jurisdiction or set out the limits of the non-exclusive jurisdiction clause. The parties to the JVA did not seek to limit the scope of their submission to Singapore courts and therefore it should be inferred that the parties intended to capture all disputes in relation joint venture under the jurisdiction of Singapore courts.
Public policy considerations
In arriving at its decision in Nyunt v First Property Pte Ltd , the Court of Appeal reiterated the fundamental principle that a court asked to recognise a foreign judgment should not examine the merits of the foreign judgment and that judgment should not be circumvented through broad references to public policy.
In an increasingly global economy, Australian courts, public policy and the FJA work together to provide convenience, greater certainty in international transactions, comity and recognition of judicial institutions of other countries. The Court of Appeal considered that broad conception of public policy arguments invoked to set aside registration of foreign judgments will undermine these goals.