For various reasons, every year a certain degree of Chinese buyers, after signing a contract for purchase of flats and paying 10% of the down payment, will not be able to continue to perform the contract by the date of delivery, so that 10% of the deposit will definitely not be available. However, it should be noted that under Australian law, developers may also sue the buyer for continued performance of the contract or compensation for financial losses caused by the buyer's default.
So, as an overseas buyer, there is no property in Australia, and once the default is gone, is it possible for the liberator to sue the court for enforcement?
For one thing, it was unlikely that Australian property had been on the rise for the past few years, with buyers defaulting developers who could sell the property for more than 10 percent in addition to taking a down payment of 10 percent. But with the continued crackdown on the property market by Australia's goverment, the housing boom has ceased and the difficulty of loans from overseas has increased, making the proportion of buyers in default increasingly high, as well as the likelihood that some developers will sue default buyers.
So, take a look at the specific relevant laws of China and Australia.
Since the recognition and enforcement of foreign judgements are generally considered procedural issues, and in accordance with the conflict law principles of the Local Law of the Court on procedural matters and the practice of countries around the world, the conduct of proceedings in a country's courts is the embodiment of that State's judicial power, The procedure for the recognition and enforcement of foreign court decisions is generally also governed by the law of the forum in which the judgment is recognized and enforced.
And because of the differences in their respective societies, political systems, cultural traditions, economic interests, historical characteristics, legal habits, and so on, there are wide differences in provisions between countries on the issue of recognition and enforcement of foreign judgments, In particular, the conditions for recognition and enforcement of foreign judgements vary greatly from country to country. This creates obstacles that often make it difficult to recognize and enforce sentences handed down by one State or, while it can be recognized and enforced in one State, not in another State.
Conditions for recognition and Enforcement of Australian judgments in China
Assuming the buyer is unable to deliver an Australian flower, the developer sued Australia with a competent court and obtained an effective verdict confirming the buyer's default. If the buyer Lao Wang is an overseas person and has no assets that can be enforced in Australia, can the developer ask the Chinese court to recognize and enforce the decision made by the Australian court in such circumstances?
From the point of view of the spirit of article 267,268 of our civil procedure law, the basic conditions for our country to recognize and enforce foreign judgments are as follows:
- The judgment of a foreign court must be a judgment which has already had legal effect.
- The decision-making State must be a bilateral treaty with our country on mutual recognition and enforcement of each other's judgments, or that the two parties are co-parties to the same international treaty or have mutually beneficial relations;
- The foreign court ruling does not violate the basic principles of our laws or national sovereignty, security, and social public interests.
Whenever foreign judgments conform to the above three principles, China shall recognize and enforce them in accordance with the provisions of the Civil procedure Law of our country. Generally speaking, the conditions of recognition and enforcement of foreign judgments in China are only briefly stipulated in principle. The regulations on the recognition and enforcement of foreign judgments in our country are too simple and general compared with those in Australia. Especially when we need mutual legal assistance with Australia or mutual recognition and enforcement of the two countries' judgments, it is even more difficult to proceed smoothly.
In addition, We may refer to a real case in Guangdong Province, the request of the Supreme people's Court on the Application for recognition and Enforcement of the Australian Court decision by the applicant Flaxi Power engine Co., Ltd. (1 March 2007 [1 March 2007] [2006] Min Sihua No. 45)
Guangdong higher people's Court:
You have received your [2006] request for Application for recognition and Enforcement of Australian Court decisions in Application for recognition and Enforcement of Australian Court decisions by applicant Flaise Power engine Co., Ltd., No. 11. According to the research, China and the Australian Federation have not concluded or participated in the mutual recognition and enforcement of the civil judgment of the court, the international treaties ruled, and the corresponding reciprocal relationship has not been established. Flaise Power engine Co., Ltd.'s application has no legal basis and should be rejected. In accordance with the provisions of Article 318 of the Supreme people's Court on the interpretation of certain issues concerning the Application of the Civil procedure Law of the people's Republic of China, the parties may bring separate proceedings before a people's court having jurisdiction.
This reply.
Having inquired about the Civil procedure Law and the opinions of the Supreme people's Court on certain issues concerning the application of the Civil procedure Law of the people's Republic of China, The relevant provisions of the conclusion of the Treaty on Mutual legal Assistance and extradition to the outside World and the reply of the Supreme people's Court to the request of the applicant for recognition and Enforcement of the judgment of the Australian Court of Justice in the case concerning Application for recognition and Enforcement of the judgment of the Australian Court by the Supreme people's Court, The conclusion of the mutual legal assistance and extradition treaty between China and Australia is as follows:
As of February 2018, no treaty on mutual legal assistance in civil and commercial matters has been concluded. Therefore, the entry into force judgment issued by Australian courts is currently more difficult to obtain recognition and enforcement by Chinese courts, requiring the parties concerned to sue the relevant competent courts in China and the people's courts with jurisdiction to make decisions, It will not be implemented before it is implemented.
Conditions for recognition and Enforcement of Chinese judgments in Australia
Assuming the buyer Lao Wang could not deliver an Australian flower, the developer took the case to a court with relevant jurisdiction in China and obtained an effective verdict confirming the buyer's default. But the buyer Lao Wang has several assets in Australia, so in this case, can the developer request the Australian court to recognize and enforce the Chinese court's decision?
In principle, for a Chinese sentence to be enforced in an Australian court, four conditions must be met, and if the relevant conditions are met, the Australian court will enforce the Chinese judgment, which are:
- The judgment must be made by the Chinese court, which has international jurisdiction over defendant under Australian law;
- The judgement must be final and final;
- The amount of the award must be determined or easily calculated; and
- The parties to the judgment of the Chinese courts and the parties to the execution of the proceedings must be consistent and have the same interest.
The first condition is the determination of jurisdiction, and Chinese courts are generally deemed to have jurisdiction in the following cases:
- Defendant, a natural person, is located in China (no matter how short the time is) at the time of the delivery of the original proceedings documents.
- Defendant, a legal person, carries on business in China at the time of service of the original legal proceedings (whether by maintaining a branch office or by employing an agent to carry on business on his behalf for a certain period of time) at a fixed and reasonably permanent location within the territory of China;
- Defendant obeys the jurisdiction of the Chinese courts by:
- Submission of an unconditional response;
- Voluntary participation in proceedings;
- Prior consent to accept the jurisdiction of a Chinese court; o
- Chinese courts handed over ownership or possession of tangible property in China.
Even if the Chinese court's decision meets the above requirements and appears to be enforceable in Australia, the Australian court may refuse to enforce the judgment on the grounds that it was obtained in a fraudulent manner, contrary to public policy, Or contrary to natural justice.
It is worth noting that litigation and success in the enforcement of Chinese court decisions create a debt that can be executed in the same manner as any other monetary award made by an Australian court.
In practice, however, according to the current known cases, Australian courts have actually not enforced the Chinese verdict, which means that Chinese courts may not be willing to grant reciprocal treatment.
