Absence of assets in Mauritius – not a bar to the recognition and enforcement of foreign judgment

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.