An Israeli court gave judgment against me while I was in Australia. Can it be cancelled?

Most people discover it by accident. A bank in Melbourne asks about a registered foreign judgment, or an Israeli relative mentions that a lawyer has been asking where you live. By then the Israeli file is closed, the judgment is months old, and the first question is not whether the claim was fair but how many days are left.

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Detailed Answer

Regulation 131 of the Civil Procedure Regulations 5779-2018 provides that where a decision has been given on one party's application alone, the other party may apply within 30 days of the decision being served to have it cancelled, and the court may cancel it on such terms as it sees fit. Israeli practice divides these applications into two families. The first is cancellation as an obligation of justice, which arises where the judgment was given on defective service, and there the defendant does not need to show a strong defence at all: a judgment entered against someone never properly brought before the court is set aside almost as of right. The second is discretionary cancellation, where service was proper and the defendant simply failed to act. There the court weighs the explanation for the default against the prospects of the defence, and the second factor carries far more weight than the first. A defendant with a genuine answer to the claim and a poor excuse usually succeeds. A defendant with a moving excuse and no defence usually does not.

Service is where a defendant in Australia has the most to work with. A claim served outside Israel relies on the grounds in Regulation 166, and the manner of service matters as much as the ground, since both countries are parties to the Hague Service Convention 1965 and delivery by ordinary post to an Australian address is not automatically good service. Documents sent to an address the claimant knew was stale, or handed to a relative in Israel, are the two patterns that most often produce cancellation. The 30 days run from service of the judgment on you, so where the judgment itself was never properly served the clock has not started, and that argument needs to be made in the application rather than assumed. Australia is not a bystander here. Israel is listed as a scheduled country under the Foreign Judgments Regulations 1992, which means a judgment of an Israeli superior court can be registered in the Supreme Court of a state or territory within six years of the judgment date under the Foreign Judgments Act 1991, and registration can then be set aside on limited grounds including that the judgment debtor did not receive notice in sufficient time to defend. That is the same factual question the Israeli court is being asked, litigated twice in two hemispheres, which is why the Israeli application should be filed first and quickly. The stage before all this, when the papers first arrive, is covered in our answer on being served with an Israeli lawsuit while living abroad.

In Practice: Regulation 131 of the Civil Procedure Regulations 5779-2018 gives 30 days from service of the judgment to apply for cancellation, supported by an affidavit that must be sworn before an Israeli consular officer under Section 50(a) of the Notaries Law 1976 or before a local notary with an apostille, at a DFAT apostille fee of about AUD 102. Israeli courts commonly grant cancellation on condition that the defendant pays the claimant's wasted costs, typically NIS 2,500 to NIS 10,000, and the hearing at the Magistrates Court is usually listed two to four months after filing. Meanwhile the claimant has six years from the judgment date to register it in an Australian state Supreme Court under the Foreign Judgments Act 1991.

When to Consult a Lawyer

• The judgment concerns Israeli property or an Israeli bank account. Enforcement through the Execution Office can attach an account within a fortnight, and an attachment already in place changes the order in which applications have to be made.
• You genuinely never saw the claim. That is the strongest case for cancellation and the easiest one to lose by delay, because a defendant who learned about the judgment in March and applies in September looks like a defendant who chose to wait.
• The claimant has already begun registration proceedings in Australia. The two files must be run together, since an Israeli cancellation removes the foundation for the Australian registration and an unopposed Australian registration undermines the Israeli argument.

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Speak With an Israeli Attorney

We examine how the original claim was served, file the Regulation 131 application inside the deadline with the defence evidence attached, and coordinate with your Australian solicitors where registration has already been sought.

Contact us for a confidential initial consultation.