Celtic Tiger refugees and their debt tail

As I sit in my University sabbatical office in mid-west Ireland, surrounded by the signs of an economy staggering, my office door opens and my office neighbour introduces herself and then starts, “I have a friend….” Well this friend, her husband and two children have left Ireland and gone to Australia, but they have a house in Ireland that they bought in the boom times and at boom-time prices with the support of a very generous bank, and cannot sell it now. The bank is owed heaps. My office neighbour asks:

“Do the laws of Australia mean that when the Irish bank repossesses and suffers loss once the property is eventually sold these new Australians will be bothered with the debt from their previous life?”

Now perhaps this doesn’t seem like a huge problem but then there are reports that 2,000 people a week leave Ireland permanently. There is over 14% unemployment here and the Irish banks have huge debts and mounting portfolios of repossessed property. The government have set up NAMA (National Asset Management Agency) to address the problem as a result of excessive property lending and as an example of their work they have acquired loans with a nominal value of 72.3billion euro ($A96.69billion) from participating financial institutions.  And then there is the report from Irish national television station RTE1 that there is an increasing rate of Irish emigrating to Australia, and that Australia has 30,000 two year work visas!

One migration expert said she was expecting between 20,000-30,000 Irish will emigrate this year.

The short answer to my Irish neighbour is ‘yes’. Foreign debts can be the basis of foreign judgments, which can be used to issue bankruptcy proceedings in Australia. Worst still, if the former Irish residents were made bankrupt in Ireland the bankruptcy lasts 12 years (and changing now to 5 years) ,and Australian bankruptcy law provides that foreign courts can seek the assistance of the Australian courts.

Ireland has not enacted the UNCITRAL Model Law, as in the Cross Border Insolvency Act 2008 (CBIA) in Australia. Under CBIA, foreign creditors have the same rights regarding the commencement of, and participation in a recognised foreign proceeding under Australian law (Art 13).

The Foreign Judgments Act 1991 (Cth) provides for holders of money judgments to register and enforce that judgement in Australia. However Ireland’s superior courts are not listed in the Foreign Judgments Regulations 1992 (Cth). The common law with its principle of ‘comity’ could be of assistance to a plaintiff such as an Irish bank seeking to enforce a final judgment of a debt or definite sum of money provided they can show that the court has jurisdiction over the defendant.

The Bankruptcy Act in s29 provides that Australian courts will act in aid of and be auxiliary to courts of prescribed countries [of which Ireland is not] and to other countries that have jurisdiction in bankruptcy [which Ireland does]. The Australian court may exercise its powers as if the matter had arisen in Australia. The leading case is Ayres v Evans (1981) 39 ALR 129.

So perhaps some Celtic Tiger refugees turning up in Australia on work visas, or with the desire to permanently emigrate, will have not successfully fled the lair.

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