Enforcing Foreign Judgments in Malaysia: Reciprocal Enforcement of Judgments Act 1958
Obtaining a judgment is not the end, particularly if the judgment debtor ignores it. Enforcement methods must be taken. A judgment by a Malaysian court is automatically enforceable via various modes provided under the Rules of Court 2012. Foreign judgments (judgments obtained outside of Malaysia) can be enforced through means such as the Reciprocal Enforcement of Judgments Act 1958 (“REJA 1958”) or through common law actions. This article focuses only on registering and enforcing these foreign judgments through REJA 1958.
REJA 1958 allows enforcement of monetary judgments from reciprocating countries by first registering that foreign judgment under REJA 1958. Once the judgment is registered, it will be enforceable in Malaysia as if it was a judgment originally obtained in Malaysia.
What are the reciprocating countries under REJA 1958?
|United Kingdom||The High Court in England
The Court of Session in Scotland
The High Court in Northern Ireland
The Court of Chancery of the County Palatine of Lancaster
The Court of Chancery of the County Palatine of Durham
|Hong Kong Special Administrative Region of the People’s Republic of China||The High Court|
|Singapore||The High Court|
|New Zealand||The High Court|
|Republic of Sri Lanka (Ceylon)||The High Court
The District Courts
(excluding the State of Jammu and Kashmir, State of Manipur, Tribal areas of State of Assam, Scheduled areas of the States of Madra and Andhra)
|The High Court|
|Brunei Darrussalam||The High Court|
Are all foreign judgments from reciprocating countries registrable and enforceable under REJA 1958?
No. The foreign judgment sought to be registered and enforced must fulfil these requirements:
- It is final and conclusive i.e., decided based on merits and not a judgment obtained by default of one party. A judgment is final and conclusive even if there is an appeal pending or if the judgment may still be subject to appeal.
- There is a sum of money payable under the judgment which has not been wholly satisfied. This sum cannot be just in respect of taxes or charges similar of taxes or a fine or penalty.
- It is a judgment given by a reciprocating country after it is recognized and added as reciprocating country under REJA 1958. If at the time the judgment is given, that country was not yet a reciprocating country under REJA 1958, even if the country was subsequently recognized and added in, that judgment unfortunately cannot be registered under REJA 1958.
- The judgment could not be enforced by execution in the country of the original court.
Is there a deadline to register a foreign judgment under REJA 1958?
Yes, a judgment creditor has 6 years from the date of the foreign judgment or from when an appeal in respect of the judgment is disposed of, to apply to the Malaysian High Court to have the judgment registered.
How is an application to register a foreign judgment made?
The application is made by way of an originating summons supported by an affidavit. The affidavit in support must:
- exhibit a copy of the duly verified or certified judgment. If it is not in English, a translation is required.
- state the name, trade or business and usual/last known address of both the judgment creditor and judgment debtor.
- state that to the best of the belief that the judgment creditor is entitled to enforce, the amount to be enforced or remains unsatisfied, that it fulfils the requirements set out above, that it would not be liable to be set aside and amount of interest due (if any).
After the foreign judgment is registered, can the judgment debtor still challenge the registration?
Yes, after a foreign judgment is registered, a copy of the Court order registering the judgment must be served on the judgment debtor. In that order, there will be a stated period for which the judgment debtor may apply to set aside the registration before enforcement proceedings can take place.
A judgment debtor can therefore within that period apply to Court to have the registration set aside and enforcement proceedings cannot commence until the expiry of that period. If an application to set aside is made, enforcement proceedings can only proceed after the application to set aside is finally disposed of.
What are the grounds for the judgment debtor to set aside the registration?
The registration will be set aside if:
- the judgment is not a judgment to which REJA 1958 applies;
- the original court in granting the judgment had no jurisdiction to do so;
- the judgment debtor did not have sufficient notice of the original proceedings in the foreign court to appear to defend the matter;
- the judgment was obtained by fraud;
- the judgment is contrary to public policy in Malaysia; or
- the rights under the judgment are not vested in the applicant when the registration was made.
The Court may also set aside if it is satisfied that the matter in dispute in the original foreign court had been finally and conclusively determined by another court having jurisdiction.
If the grounds are related to there being a pending appeal or that the judgment debtor intends to appeal the foreign judgment, the Court can also, if it is appropriate to do so, set aside the registration or adjourn the application to set aside the registration.
This article was written by Th’ng Yan Nie, Partner from Donovan & Ho’s dispute resolution practice.
Donovan & Ho is a law firm in Malaysia. Our dispute resolution provides advice and legal representation in the civil and industrial courts. We also represent clients in both domestic and international arbitration, as well as other forms of alternative dispute resolution. Our experienced lawyers are also able to assist in commercial and civil disputes (such as debt recovery, shareholders’ or directors’ disputes, breach of contract and claims for injunctive relief), constructive disputes (arbitration and/or adjudication proceedings, disputes relating to delays, liquidated damages, defects and rectification work) and employment disputes (unfair dismissal claims, judicial review proceedings, and employment-related civil claims). Have a question? Please contact us.