Registering a Foreign Judgment under The Reciprocal Enforcement of Judgments Act 1958

In Malaysia, foreign judgments may be enforced without the need to commence a fresh action. This is provided that the foreign judgment in question is granted by a ‘reciprocating country’. The courts in Malaysia are no stranger to recognizing principles based on this doctrine of international reciprocity. The Reciprocal Enforcement of Judgments Act 1958 (“REJA 1958”) is a specific statute enacted to provide the mechanism for how such judgments can be enforced here in Malaysia. The reciprocating countries stated under the Act are United Kingdom, Hong Kong, Singapore, New Zealand, Sri Lanka, India and Brunei Darussalam. This article provides in summary, the registration process of a foreign judgment and how such registration can thereafter be set aside by a judgment debtor. Procedurally, the rules governing this area of the law are contained in Order 67 of the Rules of Court 2012. The parties applying to register and set aside a foreign judgment are termed judgment creditor(s) and judgment debtor(s) respectively. 

Eligibility to register a foreign judgment (Section 3) 

Section 3(3) of REJA 1958 lays down the following criteria for a foreign judgment to be registered:

1. The judgment must be final between the parties;
2. The judgment must provide for a sum of money to be payable (excluding taxes, fines or any form of penalty); and
3. The judgment was pronounced by a court from one of the reciprocating countries set out above.

The registration process (Section 4)

The registration process which is ex parte in nature (meaning only the applicant is required to be present), is set out in Section 4 of REJA 1958. Section 4 is concerned only with the requirements for the registration of foreign judgments. In other words, provided the applicant / judgment creditor can satisfy the registering court that certain procedural conditions have been met, the judgment must be registered. It is a mandatory or mechanistic process much like the registration of adjudication or arbitration final awards.  Pursuant to Section 4(1) of the Act, the applicant / judgment creditor will have to satisfy the registering court that the foreign judgment:

1. Was issued or pronounced within 6 years prior by the original court;
2. Has not been satisfied in full by the judgment debtor;
3. Is capable of being enforced or executed in the original court.

Once registered, the judgment given by the High Court of Malaya will be treated as if it is a judgment given by the original court. Similarly, once a judgment of the original court is properly registered by the High Court of Malaya, that judgment will be accorded the same treatment as if it was a judgment given by the High Court of Malaya. Once the registration order is pronounced, a sealed copy of the said order accompanied by a notice of registration, must be served personally on the judgment debtor. The notice of registration must contain the following:

1. The particulars of the judgment and the registration order;
2. The name and address of the judgment creditor or his solicitor on whom any subsequent application to set aside by the judgment debtor may be served;
3. The right of the judgment debtor to set aside; and
4. The period within which such application to set aside the registration may be made.  

The period within which an application may be made by the judgment debtor to set aside the registration is usually 14 days from service of the registration order and the notice of registration. However, the court has discretion to extend such period on an application by the judgment debtor.

Applying to set aside the registration (Sections 5 & 6)

Upon service of the registration order and the notice of registration, a disgruntled judgment debtor may exercise his statutory right to set aside the registration under Section 5 of REJA 1958. Conventionally, the more popular grounds relied upon by judgment debtors turn on whether the requirements under Sections 3 & 4 have been met, the jurisdiction of the original court to hear the matter and whether the registration is contrary to the public policy of Malaysia.

Whether the requirements under Sections 3 or 4 have been met 

An application mounted under this limb is fairly limited in scope in that the judgment debtor will have to establish that the foreign judgment was registered in contravention of the Act. This involves showing that the registering court had mistakenly granted the registration order. In Standard Chartered Bank (Singapore) Ltd v Pioneer Smith (M) Sdn Bhd [2015] 7 CLJ 677 it was argued by the judgment debtor that the registration ought to be set aside as the requirements under Section 4(2) of the Act were not fulfilled in that the foreign judgment was purportedly not capable of being enforced in the original court. In dismissing the setting aside application, the Court held that the issue of whether the judgment creditor could as a matter of fact enforce the judgment by execution in the original court is a practical question, not a legal one. To hold otherwise would effectively allow judgment debtors and other losing parties to avoid enforcement actions against them by taking steps to cease their presence in the country of original court as well as at the same time have their assets transferred out of jurisdiction.

Whether the original court had jurisdiction to hear the matter

If the judgment debtor can show that the original court had no jurisdiction to try the matter, the registration will be set aside. In United Malayan Banking Corp v Khoo Boo Hor [1996] 1 SLR 359, the judgment creditors had obtained a default judgment in Malaysia against the judgment debtor. The judgment debtor was a Singaporean citizen who was a resident in Singapore who claimed that he did not submit to the jurisdiction of the Malaysian court. The judgment debtor thus applied to set aside the registration of the judgment in Singapore. In allowing the setting aside application, the Court held that the agreement to submit to the jurisdiction of the original court must be expressed and not implied in the circumstances of the case. Examples of express submission to jurisdiction are where the judgment debtor takes a step in proceedings in the original court, carries on a business or is ordinarily resident in that jurisdiction. 

Whether the judgment was obtained by fraud or is contrary to the public policy of Malaysia

The categories of cases under this limb are not closed. For instance, in the case of The Ritz Hotel Casino Ltd & Anor v. Datuk Seri Osu Hj Sukam [2005] 6 MLJ 760, it was ruled that the registration of a foreign judgment pursuant to REJA 1958 for a gambling debt was refused as to do so would amount to a contradiction of public policy in Malaysia. Further, a failure to observe the procedural rules of service, was found to be contrary to the public policy in Malaysia as this would akin to disregarding the sovereignty of a foreign country (United Overseas Bank Ltd v Wong Hai Ong [1999] 1 MLJ 474). 

To sum up, the principles underscoring the registration and subsequent setting aside of a foreign judgment in Malaysia under REJA are well settled. It is clear that any application to set aside the registration must fall within the four corners of Section 5 of the Act be it a challenge as to jurisdiction of the original court or whether the registration contravenes the public policy of the registering court. In all other cases where the judgment debtor wishes to challenge the merits of the judgment, the appropriate place to do so would be at the original court and not the registering court (International Factors Leasing Pte Ltd v Winds Cruises Pte Ltd & Ors [1999] 4 MLJ 165).