Australia: Enforcing US judgments in Australia

Key Points:

Enforcement strategy is often an afterthought in litigation, but you can save time and costs by developing your enforcement strategy at the start.

The USA and Australia have long enjoyed a close relationship, so it is somewhat surprising that they have not made a bilateral arrangement for the enforcement of each other's judgments. Countries with weaker connections to Australia have made bilateral arrangements allowing them to enjoy the benefits of the Foreign Judgments Act 1991 (Cth) when it comes to enforcing judgments of their domestic courts in Australia.

A party seeking to enforce a US judgment in Australia must instead rely on the common law principles for recognition and enforcement of foreign judgments. The good news is that the common law requirements are at least reasonably settled.

What US judgments can be enforced in Australia?

To be capable of enforcement in Australia, a US judgment must satisfy six requirements:

  • it must be final and conclusive;
  • there must be an identity of the parties;
  • if it is a judgment in personam, it must be for a fixed debt or readily calculable sum;
  • the US court must have exercised jurisdiction in the international sense as recognised by Australian courts;
  • it must not be wholly satisfied; and
  • it must have been obtained within the last 12 years.

Final and conclusive

To be "final and conclusive" the US judgment must end not only the proceedings between the parties, but also the dispute which led to the proceedings in the first place (Nouvion v Freeman (1889) 15 App Cas 1). The fact that an appeal may be pending against a judgment or it may still be subject to appeal will not ordinarily affect this.

US judgments obtained by default are generally considered to be final and conclusive judgments unless and until steps are taken to set it aside (Ainslie v Ainslie (1927) 39 CLR 381, Schnabel v Lui [2002] NSWSC 15, Re Teape (unreported, SCQ, Ryan J, No. 1125/1992, 26 February 1993)).

Identity of the parties

The parties to the proceedings to enforce the US judgment in Australia must be identical to the parties to the original US proceedings. For example, a US judgment made against a partnership cannot be enforced against a single partner in Australia – it must be enforced against the partnership as a whole.

Judgment for a fixed debt

Judgments in personam can only be enforced at common law if they are for a fixed or readily calculable sum.

However, in certain limited circumstances judgments involving remedies which do not necessarily involve the payment of money such as injunctions may be enforceable in Australia under equitable principles.

Jurisdiction recognised by Australian courts

To enforce a US judgment in Australia the plaintiff must prove that the US court exercised jurisdiction over the judgment debtor which is recognised by Australian courts. This is often called "jurisdiction in the international sense".

Under Australian common law rules a US court will be deemed to have exercised the relevant jurisdiction if:

  • the defendant voluntarily submitted to the court's jurisdiction; or
  • the defendant was ordinarily resident or present in the US at the time that he or she was served with the originating process.

While these are the two most common grounds for establishing jurisdiction in the international sense, there is an emerging line of authority which says international jurisdiction will be recognised where the defendant was a citizen of the country of the foreign court and the defendant actively used his or her citizenship.

For example in Federal Finance & Mortgage Ltd v Winternitz (unreported 9 November 1989, Sully J) the court held that a Hawaiian judgment was enforceable in Australia because at the time of the Hawaiian proceedings, the defendant was a US citizen and on that basis the Hawaiian court had jurisdiction over him in the international sense. In reaching this decision the presiding judge emphasised that the defendant continued to actively "use" his US citizenship by maintaining his registration as a voter in Hawaii. It has been suggested that had the defendant not maintained his voter registration and his US citizenship had been dormant then the Hawaiian court would not have had the relevant jurisdiction (Nygh's Conflict of Laws in Australia 8th ed. at [40.24]).

Are there any defences?

Provided each of the elements discussed above are satisfied then the US judgment will be enforceable under Australian common law, except if the defendant can establish one of the defences discussed below.

A defendant cannot resist the enforcement of a foreign judgment by challenging the merits of the US decision.1 This is the case even where it is apparent that the US court made an error in applying the law in the original hearing.2 A corollary of this proposition is that the defendant is also estopped from raising any defence which was or could have been raised in the original US proceedings.3

In light of the above, the only defences which a defendant can seek to rely on to resist enforcement of a US judgment are arguments that:

  • it was obtained by fraud;
  • the US court acted contrary to natural justice; or
  • the US judgment is contrary to public policy.

If it is apparent that the defendant has no grounds for relying on any of the abovementioned defences then the plaintiff may be able to move for summary judgment.4


Although there is no treaty between the USA and Australia concerning the enforcement of judgments, US money judgments can be enforced in Australia under the common law procedure.

To maximise the prospects of being able to enforce a US judgment in Australia, US attorneys may wish to consider obtaining legal advice from Australian lawyers at an early stage in the US proceedings. Enforcement strategy is often an afterthought in litigation, but in our experience you can save time and costs by developing your enforcement strategy at the beginning of a case.

Clayton Utz has considerable experience in having foreign judgments enforced in Australia. We are able to assist clients with every step in the process from having the foreign judgment recognised through to enforcing it against the defendant's Australian assets.

You might also be interested in...

1Godard v Gray (1870) LR 6 QB 139, Ainslie v Ainslie (1927) 39 CLR 381 at 402, Norsemeter Holdings v Boele (No 1) [2002] NSWSC 370 at [14], Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 567 per Bleby J, RDCW Diamonds Pty td v DA Gloria [2006] NSWSC 450 at [31] per Rothman J

2Norsemeter Holdings v Boele (No 1) [2002] NSWSC 370 at [14] and Pemberton v Hughes (1899) 1 Ch 781 at 790


4See Independent Trustee Services Ltd v Morris [2010] NSWSC 1218, RDCW Diamonds Pty td v DA Gloria [2006] NSWSC 450

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.