Absence Of Assets In Mauritius – Not A Bar To The Recognition And Enforcement Of Foreign Judgment – Court Procedure

On 12 April 2024, the Mauritian Supreme Court confirmed in
Hobler v Harker 2024 SCJ 159, that an
application to recognize and enforce a foreign judgment by way of
exequatur under the Mauritian Code of Civil Procedure would not be
defeated by reason of an absence of assets in Mauritius on the part
of the party against whom the foreign judgment is sought to be
enforced. In so doing, the Supreme Court held that to award the
application for exequatur in such circumstances would not be
contrary to public order and that such a judgment would not be
‘academic’ i.e. of no practical effect.

The case of Hobler v Harker concerned
a claim for a liquidated sum which Mr Hobler (i.e. Applicant)
successfully obtained against Mr Harker (i.e. Respondent) before
the High Court of Hong Kong Special Administrative Region on 14
January 2020 (‘Hong Kong Court‘) for the
sum of HK$ 850,000 and GBP 250,000 together with (i) the interest
rates within the specific time periods stated in the judgment and,
(ii) fixed costs of HK 11,045 (‘Hong Kong
Judgment‘).

The claim before the Hong Kong Court was for the recovery of
sums which the Applicant had extended to the Respondent (i) for the
purposes of investments and, (ii) as a personal loan granted to the
Respondent. At the time that the sums were advanced to the
Respondent, both the Applicant and the Respondent were residents of
Hong Kong.

The Applicant challenged the Respondent’s application to
recognise and enforce the Hong Kong Judgment before the Mauritian
Supreme Court even though he neither disputed the claim before the
Hong Kong Court nor applied to set aside the Hong Kong Judgment.
The Respondent’s objection before the Mauritian Supreme Court
was that the application for exequatur of the Hong Kong Judgment
amounted to an abuse of the process of the court and was frivolous
and vexatious.

The live issue before the Mauritian Supreme Court was whether
the Applicant had satisfied the fourth element that was required
for an exequatur under Article 546 of the Mauritian Code of Civil
Procedure i.e. whether the Hong Kong Judgment was contrary to
public order.

Indeed, the Mauritian Supreme Court was satisfied that the
Applicant had established the first three elements which it laid
down in D’Arifat & Ors v Lesueur 1949 MR 191
namely:

• the Hong Kong Judgment was still valid and capable of execution
  in the country where it was delivered;




• the Respondent had been regularly summoned to attend
  proceedings before the Hong Kong Court; and




• the Hong Kong Court had jurisdiction to entertain the
  Applicant’s claim.

On the fourth element, the Mauritian Supreme Court cited with
approval the following principles which it laid down in S.A.
Epson France v Societe Intervenant Technologie Ltd 2012 SCJ
114 namely:

• First, in an application for an exequatur, a lower threshold is
  applied when determining the requirement for public order. This was
  so because under these circumstances, the function of the Mauritian
  Supreme Court was to give effect to rights that had already been
  determined by a foreign court rather than having to determine these
  rights now; and




• Secondly, each case had to be determined on its own facts
  because there was no general rule that would
  “indiscriminately apply to all cases when deciding whether
  there has been any breach of l’ordre public
  international”.

Applied to the exequatur in Hobler v Harker (supra),
the Mauritian Supreme Court:

• took the view that the Respondent had limited himself to a
  general denial of Mr. Hobler’s claim rather than attempting to
  provide an alternative version of facts to the Mauritian Supreme
  Court which could have raised a reasonable doubt on the
  Applicant’s version;




• set aside the Respondent’s contention that the
  Applicant’s exequatur should not succeed because the
  Respondent did not reckon assets in Mauritius and had left the
  jurisdiction. In so doing, the Mauritian Supreme Court followed the
  decision of the Cour de Cassation, Premiere Chambre Civil, 26 June
  2019 (Node pourvoi 17-19.240) to the effect that it was not a
  pre-condition anymore for an exequatur that the judgment debtor
  should own assets in the jurisdiction where the exequatur of the
  foreign judgment was sought.

The stand taken by the Mauritian Supreme Court brings an
important refinement to the pre-conditions for an exequatur which
focuses on the rights of an applicant as an overriding concern once
all elements of an exequatur are met as opposed to what could be
perceived as practical considerations. This places into context its
stand in Dallah Albaraka (Ireland) Ltd v Pentasoft Technologies
Limited & anor 2015 SCJ 168 in which Appleby appeared and
was granted an exequatur of an English judgment against a Singapore
incorporated company which reckoned presence in Mauritius through
its wholly-owned Mauritian subsidiary. It is to be noted however
that Dallah Albaraka (supra), the existence of assets in
Mauritius by the Singapore entity (i.e. its shares in its Mauritian
subsidiary) was a factor that was taken into consideration by the
Mauritian Supreme Court when determining the merits of the
application for an exequatur.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.