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Bao v Qu; Tian (No 2)

Bao v Qu; Tian (No 2)

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Case Copied 19 May 2020 24 min read

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Supreme Court

New South Wales

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Medium Neutral Citation: Bao v Qu; Tian (No 2) [2020] NSWSC 588
Hearing dates: 16 April 2020
Date of orders: 19 May 2020
Decision date: 19 May 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The defendants shall pay the plaintiff an amount of RMB 2,802,849.
(2) The defendants shall pay the plaintiff’s costs, as agreed or assessed, of and incidental to these proceedings.
Catchwords: FOREIGN JUDGMENT – enforcement – common law – principles – jurisdiction – Peoples Republic of China – judgment enforced
Legislation Cited: Civil Procedure Act 2005 (NSW)
Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 (Cth), Sch 1
Uniform Civil Procedure Rules 2005 (NSW), Part 16
Cases Cited: Ainslie v Ainslie (1927) 39 CLR 381; [1927] HCA 23
Bank Polska Kasa Opieki Spolka Akcyjna v Opara (2010) 238 FLR 309; [2010] QSC 93
Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Benefit Strategies Group v Prider (2005) 91 SASR 544; [2005] SASC 194
Boele v Norsemeter Holding AS [2002] NSWCA 363
Carl Zeiss Stiftung v Rayner & Keele Ltd [1967] 1 AC 853
City of Swan v McGraw-Hill Companies Inc (2014) 223 FCR 295; [2014] FCA 442
Colt Industries Inc v Sarlie (No 2) [1966] 1 WLR 1287
Derry v Peek (1889) 14 App Cas 337; [1886–90] All ER Rep 1
Doe v Howard [2015] VSC 75
Fulcrum Securities Ltd Lake [2009] NSWSC 1202
Herman v Meallin (1891) 8 WN (NSW) 38
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68
Keele v Findley (1990) 21 NSWLR 444
Kohnke v Karger [1951] 2 KB 670
Lewis v Eliades [2003] EWCA Civ 1758
Nouvion v Freeman (1889) 15 App Cas 1
Price v Dewhirst (1837) 8 Sim 279; 59 ER 111
Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3
RDCW Diamonds Pty Ltd v Da Gloria [2006] NSWSC 450
Schnabel v Yung Lui [2002] NSWSC 15
Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69
Stern v National Australia Bank; National Australia Bank Ltd v Pollack [1999] FCA 1421
Suzhou Haishun Investment Management Co. Ltd v Yue’e Zhao & Ors [2019] VSC 110
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
XPlore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267
Yoon v Song (2000) 158 FLR 295; [2000] NSWSC 1147
Texts Cited: M Davies et al, Nygh’s Conflict of Laws in Australia (LexisNexis, 10th ed, 2020)
Category: Principal judgment
Parties: Dexu Bao (Plaintiff)
Mei Qu (First Defendant)
Xin Tian (Second Defendant)
Representation:
Counsel:
J Kay Hoyle (Plaintiff)
R Keller (First & Second Defendants)
Solicitors:
King & Wood Mallesons (Plaintiff)
Abu Legal (First & Second Defendants)

File Number(s): 2019/286500

Judgment

HIS HONOUR: By Amended Summons filed 15 October 2019, the plaintiff, Dexu Bao, seeks the enforcement of a judgment of the Qingdao Intermediate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 588
Decision Date: 19 May 2020

CaseChat Overview and Summary

The case of Bao v Qu; Tian (No 2) involved a dispute over the enforcement of a foreign judgment from the People's Republic of China. The plaintiffs, represented by Mr. Bao, sought to enforce a Chinese judgment in the Australian court. The defendants, Mr. Qu and Mr. Tian, contested the enforceability of the judgment, raising issues about the Australian court's jurisdiction and the principles governing the enforcement of foreign judgments. The case was heard by the Federal Court of Australia, which had to determine whether the Chinese judgment could be recognised and enforced under Australian law.

The primary legal issues the court had to address were the jurisdictional reach of the Australian courts in enforcing foreign judgments and the applicability of the common law principles that guide such enforcement. The court also had to consider the specific circumstances of the Chinese judgment, including whether it was final, conclusive, and consistent with the principles of natural justice. The defendants argued that the judgment did not meet these criteria and, as such, should not be enforced.

In its reasoning, the court examined the relevant statutes and case law that govern the enforcement of foreign judgments in Australia. It found that the Chinese judgment was final and conclusive and did not contravene any fundamental principles of Australian law. The court also noted that the judgment was consistent with the principles of natural justice, as required by the common law. Consequently, the court ruled that the Australian court had jurisdiction to enforce the Chinese judgment. The plaintiffs' application for enforcement was granted, and the defendants' objections were dismissed.

The final orders of the court confirmed the enforceability of the Chinese judgment in Australia. The court mandated that the judgment be treated as if it were a domestic judgment, allowing for the enforcement of its terms within the jurisdiction. The defendants were directed to comply with the judgment, and the plaintiffs were granted the necessary remedies to enforce the judgment's provisions. This decision underscores the importance of adhering to international legal principles in the enforcement of foreign judgments, ensuring that Australian courts respect the outcomes of legal proceedings from other jurisdictions.

Orders