Debt Questions

Hi there well here we go, i owe 14k in the uk and had been paying my repayments from aus until last october. I had contacted the bank prior to this trying to reduce my payments and explained i was overseas and then tried in my aus branch of "the worlds local bank" only to be told they were totally seperate. After threats of debt collectors and more phone calls that were like talking to a flow chart i emailed the bank and explaining i have nothing they can collect at my parents address and i wouldn't transfer any money into my account just to pay the charges. Now as of a week ago they have sold my shares worth about 900 pound stopped my account and passed the debt to collectors. Ive recently moved banks and address over here so what i need to know is can they find me out here and can they do anything to my parents house/belongings? thanks spudlink

Hi Spudlink

That sounds like a familiar story!

I assume the debts are for simple consumer debts like credit cards and bank loans? Just google "uk debt being Chased in Australia" and you'll find an immense amount of very current and extremely accurate information on this topic.

These are your debts so unless they are in some way acting as legal guarantors, there's nothing the bank can do to sieze your parents' property.

As you have discovered, the banks / credit cards in Australia have absolutely no connection with accounts held by their sister banks in the UK - they share the same logo but that's all!

Even if they did bother trying to find you here, there's nothing the bank or any DCA can do to enforce your debts nor can they do anything that will affect your Australian credit rating.

Any repayment plan you suggest to the UK bank is entirely voluntary and thus you dictate the terms.

The UK & Australia have a formal recovery agreement in place so UK judgments can be enforced down under and visa versa The only questions are Do they obtain one here and enforce there or sell to a third party down under who then uses the local legal system to recover said debt and finally when this will occur See below

Statutory Instrument 1994 No. 1901
The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994



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STATUTORY INSTRUMENTS
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1994 No. 1901

JUDGMENTS

The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994

Made 19th July 1994
Coming into force in accordance with Article 1


At the Court at Buckingham Palace, the 19th day of July 1994

Present,

The Queen's Most Excellent Majesty in Council

Whereas an Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia[1], a copy whereof is set out in the Schedule to this Order, providing for the reciprocal recognition and enforcement of judgments in civil and commercial matters, was signed at Canberra on 23rd August 1990:
And whereas the said Agreement has been supplemented in accordance with Article 1(b)(iii) thereof by an agreement between the said Governments to include the Industrial Relations Court of Australia as a court to which the said Agreement shall apply:
And whereas Her Majesty is satisfied that, in the event of the benefits conferred by Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933[2] being extended to judgments in civil and commercial matters given in the courts of Australia, substantial reciprocity of treatment will be assured as regards the enforcement in Australia of similar judgments given in the courts of the United Kingdom:
And whereas it appears to Her Majesty that the law in Australia provides for the enforcement in Australia of judgments given under section 6 of the Protection of Trading Interests Act 1980[3]:
Now, therefore, Her Majesty, by virtue and in exercise of the powers conferred on Her by section 14(2) of the Administration of Justice Act 1920[4], section 1 as read with section 3 of the Foreign Judgments (Reciprocal Enforcement) Act 1933, section 7 of the Protection of Trading Interests Act 1980[5] and section 9(2) of the Civil Jurisdiction and Judgments Act 1982[6] is pleased by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:
1. This Order may be cited as the Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994. It shall come into force on the date on which the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia, signed at Canberra on 23rd August 1990, providing for the reciprocal recognition and enforcement of judgments in civil and commercial matters shall enter into force, which date shall be notified in the London, Edinburgh and Belfast Gazettes.
2. Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 shall extend to Australia[7].
3. The following courts of Australia (hereinafter referred to as "recognised courts") shall be recognised for the purposes of Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933, that is to say:
the High Court of Australia;


the Federal Court of Australia;


the Industrial Relations Court of Australia;


the Family Court of Australia;


the Family Court of Western Australia;


the Supreme Court exercising jurisdiction in respect of each Australian State or Territory;


the District Court of New South Wales;


the County Court of Victoria;


the District Courts in Queensland;


the District Court of Western Australia;


the Local Courts in, and the District Court and the Magistrates' Court of, South Australia;


the Courts of Requests in Tasmania; and


the Magistrates' Court of the Australian Capital Territory.


4. The following judgments shall be judgments to which Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies, that is to say—
(a) any judgment, decree, rule, order or other final decree for the payment of money (other than in respect of taxes or other charges of a like nature or an order requiring the payment of maintenance) given by a recognised court in respect of a civil or commercial matter;
(b) an award in proceedings on an arbitration conducted in Australia under the law applying there if the award has become enforceable in the same manner as a judgment in that country;
(c) a judgment or order given or made by a recognised court in criminal proceedings for the payment of money in respect of compensation or damages to an injured person.
5. A judgment given in a recognised court shall, in the absence of proof to the contrary, be deemed to be capable of execution in Australia on production of a certified copy of the judgment.
6. A judgment of a recognised court obtained under section 10 of the Foreign Proceedings (Excess of Jurisdiction) Act 1984 of Australia shall be enforceable in the same manner and circumstances as an award to which section 6(2) of the Protection of Trading Interests Act 1980 applies, where the judgment—
(a) was obtained after the coming into force of this Order; and
(b) relates to the recovery of sums paid or obtained pursuant to a judgment for multiple damages within the meaning of section 5(3) of the said Act of 1980; and
(c) is founded on an instrument made under section 9(1) of the said Act of 1984 which includes a statement that the Attorney-General is satisfied in accordance with either—
(i) paragraph 9(1)(b)(ii) of that Act; or
(ii) paragraph 9(1)(b)(i) and paragraph 9(1)(b)(ii) of that Act.
7. The rate of interest due under the law in Australia upon the sum in respect of which a judgment of a recognised court is given shall be deemed to be that specified in the judgment or any certificate of the original court accompanying the judgment and, if no rate is so specified, no interest shall be deemed to be due thereon under the law in Australia unless the contrary is shown.
8. It is hereby declared that—
(a) the provisions contained in articles 5 and 7 of this Order are necessary for giving effect to the Agreement scheduled hereto in relation to matters with respect to which there is power to make rules of court for the purposes of Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933; and
(b) Article 3 of the Agreement scheduled hereto is a provision of a convention whereby the United Kingdom assumes an obligation of the kind provided for in article 59 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Brussels on 27th September 1968[8].
9.—(1) The Reciprocal Enforcement of Judgments (Australian Capital Territory) Order 1955[9] is hereby revoked.

(2) The Reciprocal Enforcement of Judgments (Administration of Justice Act 1920, Part II) (Consolidation) Order 1984[10] shall be amended by deleting from Schedule 1 thereto the following entries—
(a) New South Wales;
(b) Northern Territory of Australia;
(c) Queensland;
(d) South Australia;
(e) Tasmania;
(f) Victoria;
(g) Western Australia.

Si,

You are correct that there are reciprocal agreements between the UK and Australia but for the sort of consumer debt discussed by the OP this is irrelevant.

As the title of the act states, the agreement allows for judgements previously obtained in one nation to be enforced in a foreign court.

Thus if a creditor obtained a CCJ against a debtor, then that could, in theory, be enforced in a foreign court. Whether they would bother to do so would obviously depend upon the sums involved.

However, if there is no CCJ, then a creditor cannot obtain one for for anyone living outside the UK (in this case Australia) so the reciprocal Agreement becomes irrelevant as there is no UK judgement to enforce.

So, whilst there are various scenarios where previously obtained judgements on UK debts may be enforced in foreign countries, in the case of the OP who does not, nor can have, a CCJ issued against them this does not apply.

Furthermore, since any such UK consumer debts would be covered by the UK's CCA which is most clear that no other courts other than a UK County Court has jurisdiction, no foreign court may make a judgement even if it has been sold to a third party in that country.

I hope this helps to clarify matters.

This SI is only one of 7 covering reciprocal arrangements between the two nations but the point is if judgments have been obtained they can be recovered by the other countries legal system. If they haven’t they cant certainly by these agreements but given so many CCA judgments are obtained before a debt becomes statute barred here in the UK the scenario of jurisdiction is very often missed as they are obtained under UK rules but never replied to by the defendant.

I've been dealing with clients with both judgements from down under living here and visa versa for since 1990 as part of my job and seen all too much paperwork from various countries courts to be able to say with some authority that both are often enforced either here or there are appropriate. The point of posting the SI was to warn that judgments are obtained for gone away debts in both countries and then the reciprocal agreements allow enforcement locally so its a very real concern for any gone away debtors down under & visa versa. This may be very differnt to the theretical ability to do so if all the rules are adhered to but they dont adhere to these in all cases so its pointless indicating that they will when this is not what ocurrs in the real world Yes there are of course loads of arguments about jurisdiction over various types of debt such as CCA ones or even the northern territories statutory 3 year limit on debt which I’ve seen abused and got around by debt sale down under first but this not an advisers part of the forum to discuss such in depth points in particular case's but one for ordinary users asking questions on the possible action that can be taken against them & local legal action is possible and is in fact quite frequent. Challenging validity is of course the next stage which the adviser has to look at on a case by case basis but as a general principal this and the other arrangements do allow recovery of many types of debt not just CCA ones when judgment are obtained which they often are. The problem in many cases is proof of service is postage to the debtors last known address so in many gone away cases they don’t want to be found deliberatly and as such get a judgment in their absence as a result which is then used as the bassi for action down under.

I hope this clarifies why I posted the SI I had hoped it would be of help as forwarned is forarmed rather than sparking argumenst about what or what should not ocurr which is quite differnt from what often does Ive seen all to many who have believed legal action aginst them in Auz is impossable and act accordingly only to have very nasty recovery steps taken almost without warning against them at some point down the line. However I simply don’t have the time to waste on a theological debate and so won’t be replying any further on this one. The problem comes when you scan such posts from time to time having years of casework experience in dealing with the issues that its always tempting to post for the benefit of the person in trouble which is what advisers do when they can but as this post has shown this is not always the best course of action to take. The bottom line is that whether theological observers like it or not many hundreds of CCA judgments and several thousand others are enforced in Auz every year. Many are quite properly challengeable and various grounds but the punters who are on the receiving end are often ill prepared to action such challenges In some instances none CCA judgments and the action that follows ruins their lives and as such someone asking about this needs to know this not just what’s theoretically meant to happen or be possible. Best wishes

This SI is only one of 7 covering reciprocal arrangements between the two nations but the point is if judgments have been obtained they can be recovered by the other countries legal system.

Sorry - but isn't that what I just said?

In the context of this post, no UK judgement = No enforcement in a foreign court.

If a debtor is overseas and a creditor manages to get a CCJ based on their last known address, its fairly simple to get it set aside and thrown out once the court is informed of the facts - ie that the debtor was not living in the UK and so couldn't offer a defence.

If a foreign DCA is willing to chance their arm on legal action based on an unlawfully obtained CCJ, then good luck to them. I'll pay for tickets to watch that one unfold in court!

In the case of the OP who asked a fairly specific question about his debt being enforced in either the UK or Australia, the bank is fully aware that they are in Australia and so a legally obtained CCJ is out of the question.

You say that local action is "quite frequent" can you qualify that? Are you talking about the EU, Asia, Australasia, the USA, Canada? And to what type of judgements are you referring? Bankrupticies? Debts under the CCA? Crown debts?

Please be more specific. Do you mean that enforcement action has actually been taken in foreign courts - or simply that DCAs have issued threats of such action and debtors have paid up as a result?

I am curious to know what your job is that has enabled you to have "seen seen all to many who have believed legal action aginst them in Auz is impossable and act accordingly only to have very nasty recovery steps taken almost without warning"?

Can you cite any authorities to substantiate this statement?

The bottom line is that whether theological observers like it or not many hundreds of CCA judgments and several thousand others are enforced in Auz every year.

I have never in my life read such an unbelievably stupid and misleading statement!

I presume you mean CCJ judgements not CCA? And exactly what other UK legislation would lead to "several thousand other" cases of UK ex-pats being sued in the Australian Federal Courts each year?

Where on earth are all these debtors supposed to be coming from?

Speaking purely hypothetically and assuming that by "several" you mean at least three or four, your statistics imply that if maybe one in a hundred debtors actually went to court rather than paying up, this means that there around 300,000 - 400,000 ex-pats in Australia being actively pursued by DCAs for CCJs and other debts...that's 2% of the entire population!

As before, cite just one example of these thousands of cases and then, maybe, you'll have a scintilla of credibility.

I would also expect that common courtesy dictates that if one is going to reply to a thread, one does not just edit (or almost completely re-write)a previous post to refute an argument without giving some indication of what's been changed. It makes it very hard for future readers to follow the conversation.

And I don't think you really mean that there is any religious aspect to all this do you?