Foreign Judgments (Reciprocal Enforcement) Act

Link to law: http://tuvalu-legislation.tv/cms/images/LEGISLATION/PRINCIPAL/1965/1965-0001/ForeignJudgmentsReciprocalEnforcementAct_1.pdf
Published: 1965-03-23

Foreign Judgments (Reciprocal Enforcement) Act


2008 Revised Edition

CAP. 7.28






FOREIGN JUDGMENTS (RECIPROCAL
ENFORCEMENT) ACT

Foreign Judgments (Reciprocal Enforcement) Act
CAP. 7.28

Arrangement of Sections





2008 Revised Edition


Page 3



FOREIGN JUDGMENTS (RECIPROCAL
ENFORCEMENT) ACT

Arrangement of Sections
Section

PART I - PRELIMINARY 5
1 Short title................................................................................................................ 5
2 Interpretation.......................................................................................................... 5

PART II - REGISTRATION OF FOREIGN JUDGMENTS 6
3 Power to extend Part II to foreign countries giving reciprocal treatment .............. 6
4 Application for and effect of registration of foreign judgments ............................ 7
5 Power of the Chief Justice to make rules............................................................... 8
6 Cases in which registered judgments must or may be set aside............................. 9
7 Powers of registering court on application to set aside registration..................... 10
8 Foreign judgments which can be registered not to be enforceable otherwise...... 11
9 Power to apply Part II to Commonwealth territories ........................................... 11

PART III - MISCELLANEOUS AND GENERAL 12
10 General effect of certain foreign judgments ........................................................ 12
11 Power to make foreign judgments unenforceable if no reciprocity ..................... 12
12 Issue of certificates of judgments obtained in Tuvalu ......................................... 13


SCHEDULE 14

DIRECTION UNDER SECTION 3 (1) EXTENDING PART II TO FOREIGN
COUNTRIES GIVING RECIPROCAL TREATMENT 14

DIRECTIONS UNDER SECTION 9 (1) APPLYING PART II TO
COMMONWEALTH TERRITORIES COURTS 14

Arrangement of Sections
CAP. 7.28 Foreign Judgments (Reciprocal Enforcement) Act





2008 Revised Edition Page 4




Supporting Documents

ENDNOTES 15

Foreign Judgments (Reciprocal Enforcement) Act CAP. 7.28 Section 1





2008 Revised Edition


Page 5



FOREIGN JUDGMENTS (RECIPROCAL
ENFORCEMENT) ACT

AN ACT TO MAKE PROVISION FOR THE ENFORCEMENT IN TUVALU
OF JUDGMENTS GIVEN IN COUNTRIES WHICH ACCORD

RECIPROCAL TREATMENT TO JUDGMENTS GIVEN IN TUVALU,
FOR FACILITATING THE ENFORCEMENT IN SUCH COUNTRIES OF

JUDGMENTS GIVEN IN TUVALU, AND FOR OTHER PURPOSES IN
CONNECTION WITH THE MATTERS AFORESAID1

Commencement [23rd March 1965]

PART I - PRELIMINARY

1 Short title
This Act may be cited as the Foreign Judgments (Reciprocal Enforcement) Act.

2 Interpretation
(1) In this Act, unless the context otherwise requires —

“appeal” includes any proceeding by way of discharging or setting aside a
judgment or an application for a new trial or a stay of execution;

“country of the original court” means the country in which the original
court is situated;

“judgment” means a judgment or order given or made by a court in any civil
proceedings or a judgment or order given or made by a court in any criminal
proceedings for the payment of a sum of money in respect of compensation or
damages to an injured party;

Section 3 CAP. 7.28 Foreign Judgments (Reciprocal Enforcement) Act





2008 Revised Edition Page 6




“judgment creditor” means the person in whose favour the judgment was
given, and includes any person in whom the rights under the judgment have
become vested by succession or assignment or otherwise;

“judgment debtor” means the person against whom the judgment was given,
and includes any person against whom the judgment is enforceable under the
law of the original court;

“original court” in relation to any judgment means the court by which the
judgment was given;

“registration” means registration under Part II and the expressions “register”
and “registered” shall be construed accordingly;

“registering court” in relation to any judgment means the court to which an
application to register the judgment is made.

(2) For the purposes of this Act the expression “action in personam” shall not be
deemed to include any matrimonial cause or any proceedings in connection
with any of the following matters, that is to say, matrimonial matters,
administration of the estates of deceased persons, bankruptcy, winding up of
companies, lunacy, or guardianship of infants.

(3) For the purposes of this Act the expression “judgments given in the High
Court” shall be deemed to include a judgment given in any court on appeal
against any judgment given in the High Court.

PART II - REGISTRATION OF FOREIGN JUDGMENTS

3 Power to extend Part II to foreign countries giving reciprocal treatment
(1) The Minister, if he is satisfied that, in the event of benefits conferred by this

Part being extended to judgments given in the superior courts of any foreign
country, substantial reciprocity of treatment will be assured as respects the
enforcement in that foreign country of judgments given in the High Court,
may by order direct —
(a) that this Part shall extend to that foreign country;2 and
(b) that such courts of that foreign country as are specified in the order

shall be deemed superior courts of that country for the purposes of this
Part.

(2) Any judgment of a superior court of a foreign country to this Part extends,
other than a judgment of such a court even on appeal from a court which is
not a superior court, shall be a judgment to which this Part applies if —
(a) it is final and conclusive as between the parties thereto; and

Foreign Judgments (Reciprocal Enforcement) Act CAP. 7.28 Section 4





2008 Revised Edition


Page 7



(b) there is payable thereunder a sum of money, not being a sum payable in
respect of taxes or other charges of a like nature or in respect of a fine
or other penalty; and

(c) it is given after the coming into operation of the order directing that this
Part shall extend to that foreign country.

(3) For the purposes of this section a judgment shall be deemed to be final and
conclusive notwithstanding that an appeal be pending against it or that it may
still be subject to appeal in the courts of the country of the original court.

4 Application for and effect of registration of foreign judgments
(1) A person being a judgment creditor under a judgment to which this Part

applies may apply to the High Court at any time within 6 years after the date
of the judgment or, where there have been proceedings by way of appeal
against the judgment, after the date of the last judgment given in those
proceedings, to have the judgment registered in the High Court, and on any
such application the court shall, subject to proof of the prescribed matters and
to the other provisions of this Act, order the judgment to be registered:

Provided that a judgment shall not be registered if at the date of the
application —
(a) it has been wholly satisfied; or
(b) it could not be enforced by execution in the country of the original

court.

(2) Subject to the provisions of this Act with respect to the setting aside of
registration —
(a) a registered judgment shall for the purposes of execution be of the same

force and effect; and
(b) proceedings may be taken on a registered judgment; and
(c) the sum for which a judgment is registered shall carry interest; and
(d) the registering court shall have the same control over the execution of a

registered judgment,

as if the judgment had been a judgment originally given in the registering
court and entered on the date of registration:

Provided that execution shall not issue on the judgment so long as under this
Part and the rules made thereunder it is competent for any party to make an
application to have the registration of the judgment set aside or, where such
an application is made, until after the application has been finally determined.

(3) Where the sum payable under a judgment which is to be registered is
expressed in a currency other than the currency of Tuvalu, the judgment shall
be registered as if it were a judgment for such sum in the currency of Tuvalu

Section 5 CAP. 7.28 Foreign Judgments (Reciprocal Enforcement) Act





2008 Revised Edition Page 8




as, on the basis of the rate of exchange prevailing at the date of the judgment
of the original court, is equivalent to the sum so payable.

(4) If, at the date of the application for registration, the judgment of the original
court has been partly satisfied, the judgment shall not be registered in respect
of the whole sum payable under the judgment of the original court but only in
respect of the balance remaining payable at that date.

(5) If on an application for the registration of a judgment it appears to the
registering court that the judgment is in respect of different matters, and that
some but not all of the provisions of the judgment are such that, if those
provisions had been contained in separate judgments, those judgments could
properly have been registered, the judgment may be registered in respect of
the provisions aforesaid but not in respect of any other provisions contained
therein.

(6) In addition to the sum of money payable under the judgment of the original
court, including any interest which by the law of the country of the original
court becomes due under the judgment up to the time of registration, the
judgment shall be registered for the reasonable costs of and incidental to
registration, including the costs of obtaining a certified copy of the judgment
from the original court.

5 Power of the Chief Justice to make rules
(1) Subject to the provisions of this section, the Chief Justice may make rules for

all or any of the following purposes —
(a) for making provision with respect to the giving of security for costs by

persons applying for the registration of judgments;
(b) for prescribing the matters to be proved on an application for the

registration of a judgment, and for regulating the mode of proving those
matters;

(c) for providing for the service on the judgment debtor of notice of the
registration of a judgment;

(d) for making provision with respect to the fixing of the period within
which an application may be made to have the registration of the
judgment set aside and with respect to the extension of the period so
fixed;

(e) for prescribing the method by which any question arising under this Act
whether a foreign judgment can be enforced by execution in the country
of the original court or what interest is payable under a foreign
judgment under the law of the original court is to be determined;

(f) for prescribing any matter which under this Part is to be prescribed.

(2) Rules made for the purposes of this Part shall be expressed to have and shall
have effect subject to any such provisions contained in orders made under

Foreign Judgments (Reciprocal Enforcement) Act CAP. 7.28 Section 6





2008 Revised Edition


Page 9



section 3 as are declared by the said orders to be necessary for giving effect to
agreements made between Tuvalu and foreign countries in relation to matters
with respect to which there is power to make rules for the purposes of this
Part.

6 Cases in which registered judgments must or may be set aside
(1) On an application in that behalf duly made by any party against whom a

registered judgment may be enforced, the registration of the judgment —
(a) shall be set aside if the registering court is satisfied —

(i) that the judgment is not a judgment to which this Part applies or
was registered in contravention of the foregoing provisions of
this Act; or

(ii) that the courts of the country of the original court had no
jurisdiction in the circumstances of the case; or

(iii) that the judgment debtor being the defendant in the proceedings
in the original court did not (notwithstanding that process may
have been duly served on him in accordance with the law of the
country of the original court) receive notice of those proceedings
in sufficient time to enable him to defend the proceedings and
did not appear; or

(iv) that the judgment was obtained by fraud; or
(v) that the enforcement of the judgment would be contrary to public

policy in the country of the registering court; or
(vi) that the rights under the judgment are not vested in the person by

whom the application for registration was made;
(b) may be set aside if the registering court is satisfied that the matter in

dispute in the proceedings in the original court had, previously to the
date of the judgment in the original court, been the subject of a final
and conclusive judgment by a court having jurisdiction in the matter.

(2) For the purposes of this section the courts of the country of the original court
shall, subject to the provisions of subsection (3), be deemed to have had
jurisdiction —
(a) in the case of a judgment given in an action in personam —

(i) if the judgment debtor, being a defendant in the original court,
submitted to the jurisdiction of that court by voluntarily
appearing in the proceedings otherwise than for the purpose of
protecting or obtaining the release of property seized or
threatened with seizure in the proceedings or of contesting the
jurisdiction of that court; or

(ii) if the judgment debtor was plaintiff in or counter-claimed in the
proceedings in the original court; or

Section 7 CAP. 7.28 Foreign Judgments (Reciprocal Enforcement) Act





2008 Revised Edition Page 10




(iii) if the judgment debtor, being a defendant in the original court,
had, before the commencement of the proceedings, agreed in
respect of the subject matter of the proceedings to submit to the
jurisdiction of that court or of the courts of the country of that
court; or

(iv) if the judgment debtor, being a defendant in the original court,
was, at the time when the proceedings were instituted, resident
in, or being a body corporate, had its principal place of business
in, the country of that court; or

(v) if the judgment debtor, being a defendant in the original court,
had an office or place of business in the country of that court, and
the proceedings in that court were in respect of a transaction
effected through or at that office or place;

(b) in the case of a judgment given in an action of which the subject matter
was immovable property or in an action in rem of which the subject
matter was movable property, if the property in question was at the time
of the proceedings in the original court situated in the country of that
court;

(c) in the case of a judgment given in an action other than any such action
as is mentioned in paragraph (a) or paragraph (b), if the jurisdiction of
the original court is recognised by the law of the registering court.

(3) Notwithstanding anything in subsection (2) the courts of the country of the
original court shall not be deemed to have had jurisdiction —
(a) if the subject matter of the proceedings was immovable property

outside the country of the original court; or
(b) except in the cases mentioned in sub-paragraphs (i), (ii) and (iii) of

paragraph (a) and in paragraph (c) of subsection (2), if the bringing of
the proceedings in the original court was contrary to an agreement
under which the dispute in question was to be settled otherwise than by
proceedings in the courts of the country of that court; or

(c) if the judgment debtor, being a defendant in the original proceedings,
was a person who, under the rules of public international law, was
entitled to immunity from the jurisdiction of the courts of the country of
the original court and did not submit to the jurisdiction of that court.

7 Powers of registering court on application to set aside registration
(1) If on an application to set aside the registration of a judgment the applicant

satisfies the registering court either that an appeal is pending or that he is
entitled and intends to appeal against the judgment, the court, if it thinks fit,
may, on such terms as it may think just, either set aside the registration or
adjourn the application to set aside the registration until after the expiration of
such period as appears to the court to be reasonably sufficient to enable the

Foreign Judgments (Reciprocal Enforcement) Act CAP. 7.28 Section 8





2008 Revised Edition


Page 11



applicant to take the necessary steps to have the appeal disposed of by the
competent tribunal.

(2) Where the registration of a judgment is set aside under the last foregoing
subsection, or solely for the reason that the judgment was not, at the date of
the application for registration, enforceable by execution in the country of the
original court, the setting aside of the registration shall not prejudice a further
application to register the judgment when the appeal has been disposed of or
if and when the judgment becomes enforceable by execution in that country,
as the case may be.

(3) Where the registration of a judgment is set aside solely for the reason that the
judgment, notwithstanding that it had at the date of the application for
registration been partly satisfied, was registered for the whole sum payable
thereunder, the registering court shall, on the application of the judgment
creditor, order judgment to be registered for the balance remaining payable at
that date.

8 Foreign judgments which can be registered not to be enforceable
otherwise
No proceedings for the recovery of a sum payable under a foreign judgment, being a
judgment to which this Part of this Act applies, other than proceedings by way of
registration of the judgment shall be entertained by any court in Tuvalu.

9 Power to apply Part II to Commonwealth territories
(1) The Minister may by order direct that this Part shall apply to any part of the

Commonwealth outside Tuvalu and to judgments obtained in the courts of the
Commonwealth as it applies to foreign countries and judgments obtained in
the courts of foreign countries, and, in the event of the Minister so directing,
this Act shall have effect accordingly.

(2) This Part shall have effect as if any judgment of a court to which subsection
(1) applies which was registered in the High Court under the Reciprocal
Enforcement of Judgments Act had been registered in that court under this
Part, and anything done in relation thereto under that Act or any rules of court
or other provisions applicable to that Act had been done under this Part or the
corresponding rules or other provisions applicable to this Part.

Section 10 CAP. 7.28 Foreign Judgments (Reciprocal Enforcement) Act





2008 Revised Edition Page 12




PART III - MISCELLANEOUS AND GENERAL

10 General effect of certain foreign judgments
(1) Subject to the provisions of this section a judgment to which Part II applies or

would have applied if a sum of money had been payable thereunder, whether
it can be registered or not and whether, if it can be registered, it is registered
or not, shall be recognised in any court in Tuvalu as conclusive between the
parties thereto in all proceedings founded on the same cause of action and
may be relied on by way of defence or counter-claim in any such proceedings.

(2) This section shall not apply in the case of any judgment —
(a) where the judgment has been registered and the registration thereof has

been set aside on some ground other than —
(i) that a sum of money was not payable under the judgment; or
(ii) that the judgment has been wholly or partly satisfied; or
(iii) that at the date of the application the judgment could not be

enforced by execution in the country of the original court; or
(b) where the judgment has not been registered it is shown, whether it

could have been registered or not, that if it had been registered the
registration thereof would have been set aside on an application for that
purpose on some ground other than one of the grounds specified in
paragraph (a).

(3) Nothing in this section shall be taken to prevent any court in Tuvalu
recognising any judgment as conclusive of any matter of law or fact decided
therein if that judgment would have been so recognised before the passing of
this Act.

11 Power to make foreign judgments unenforceable if no reciprocity
(1) If it appears to the Minister that the treatment in respect of recognition and

enforcement accorded by the courts of any foreign country to judgments given
in the High Court is substantially less favourable than that accorded by the
courts of Tuvalu to judgments of the superior courts of that country, the
Minister may by order apply this section to that country.

(2) Except in so far as the Minister may by order under this section otherwise
direct, no proceedings shall be entertained in any court in Tuvalu for the
recovery of any sum alleged to be payable under a judgment given in a court
of a country to which this section applies.

Foreign Judgments (Reciprocal Enforcement) Act CAP. 7.28 Section 12





2008 Revised Edition


Page 13



12 Issue of certificates of judgments obtained in Tuvalu
Where a judgment under which a sum of money is payable, not being a sum payable
in respect of taxes or other charges of a like nature or in respect of a fine or other
penalty, has been entered in the High Court against any person, and the judgment
creditor is desirous of enforcing the judgment in a country or territory to which Part
II applies, the court shall, on an application made by the judgment creditor and on
payment of such fee as may be fixed for the purposes of this section under any rules
made under the provisions of this Act, issue to the judgment creditor a certified copy
of the judgment together with a certificate containing such particulars with respect to
the action, including the causes of action and the rate of interest if any payable on
the sum payable under the judgment, as may be prescribed:

Provided that where execution of a judgment is stayed for any period pending an
appeal or for any other reason, an application shall not be made under this section
with respect to the judgment until the expiration of that period.

SCHEDULE CAP. 7.28 Foreign Judgments (Reciprocal Enforcement) Act





2008 Revised Edition Page 14




SCHEDULE

DIRECTION UNDER SECTION 3 (1) EXTENDING PART II TO FOREIGN
COUNTRIES GIVING RECIPROCAL TREATMENT

Part II shall extend to the Independent State of Papua New Guinea and the Supreme Court
of that State shall be deemed a superior court of that State for the purposes of Part II.3

Part II of the Act shall apply to Australia and the following courts shall be deemed superior
courts of Australia for the purpose of Part II of the Act4 -

High Court of Australia

Federal Court of Australia

Family Court of Australia

Family Court of Western Australia

Supreme Court of New South Wales

Supreme Court of Victoria

Supreme Court of Queensland

Supreme Court of Western Australia

Supreme Court of South Australia

Supreme Court of Tasmania

Supreme Court of the Northern Territory

Supreme Court of the Australian Capital Territory

Supreme Court of Norfolk Island.



DIRECTIONS UNDER SECTION 9 (1) APPLYING PART II TO
COMMONWEALTH TERRITORIES COURTS

Part II shall apply to any part of the Commonwealth outside Tuvalu and to judgments
obtained in the Courts of the Commonwealth as it applies to foreign countries and
judgments obtained in the courts of foreign countries.5



Foreign Judgments (Reciprocal Enforcement) Act CAP. 7.28 ENDNOTES





2008 Revised Edition


Page 15



ENDNOTES


1 1990 Revised Edition, Cap. 7.28, Act 1 of 1965, LN 16/1972
2 See Schedule
3 LN 27/1966
4 LN 5/1994
5 LN 26/1966
Read Entire Law on tuvalu-legislation.tv