Businesses seeking to enforce foreign default judgments in Malaysia must ensure proper certification and authentication of the judgments and translations. Comply strictly with evidence laws.
Businesses cannot rely on testimony or copies alone. Legal advice is essential.
In Pembinaan SPK Sdn Bhd v Conaire Engineering Sdn Bhd-LLC & Anor and Another Appeal [2023] 3 MLRA 287, the Federal Court of Malaysia has provided valuable insights and guidance on the process of proving a foreign judgment in a common law action to enforce the said foreign judgment.
Background Facts
Here is a simplified summary of the background facts in the case:
Conaire (a company in Abu Dhabi) was engaged as a subcontractor for a construction project in Abu Dhabi.
The main contractor was a joint venture company called SPK-Bina Puri JV. This joint venture included two Malaysian companies - Pembinaan SPK Sdn Bhd and Lebar Daun Development Sdn Bhd.
Conaire sued SPK-Bina Puri JV and the developer in Abu Dhabi court over alleged unpaid work.
In 2015, Conaire obtained a default judgment against SPK-Bina Puri JV from the Abu Dhabi court for over AED 20 million (20 million dirhams).
In 2016, Conaire filed a lawsuit in Malaysia against the two Malaysian companies Pembinaan SPK and Lebar Daun to enforce the Abu Dhabi default judgment.
The Malaysian companies argued they were unaware of the Abu Dhabi case, judgment, and disputed liability.
In summary:
Respondent in Abu Dhabi obtained a default judgment against appellants from Abu Dhabi Court (not a reciprocating country under Reciprocal Enforcement of Judgments Act 1958 (REJA))
Respondent commenced an action in Malaysia to enforce the Abu Dhabi judgment.
Questions of Law
Is a foreign judgment enforceable in Malaysia by common law action if not proved as a foreign judgment under Evidence Act 1950?
Does a default foreign judgment satisfy the rules of fair procedure and natural justice?
Without foreign judgment proved under Evidence Act 1950, is there a sustainable cause of action for other evidence?
In common law action on a foreign judgment, is the respondent limited to defences in REJA?
Is the applicant obliged to prove liability and quantum?
Does a non-REJA foreign judgment have limited defences like REJA foreign judgment?
Federal Court's Decision
The copy of the Abu Dhabi judgment exhibited was not original, certified or authenticated as required under Evidence Act 1950.
Testimony of the respondent's witness cannot replace the need to prove the judgment.
The Respondent's claim is unproven without Abu Dhabi judgment.
The Court responded negatively to Questions 1 and 3 and did not address the remaining four legal questions.
Appeal allowed
As a result, the Federal Court allowed the appeals and overturned the Court of Appeal and High Court decisions.
Conclusion
Foreign judgments must comply with Evidence Act 1950 to be admissible as evidence in Malaysian courts.
Need to produce the original or certified copy.
Translations must also be certified.
Testimony on its own is insufficient.
Reference:
Comments