Kong v Yan

[2021] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

KONG v YAN

[2021] SASC 82

Judgment of the Honourable Justice Stanley  

PRIVATE INTERNATIONAL LAW - CHOICE OF LAW - ADMINISTRATION AND SUCCESSION - ADMINISTRATION OF ESTATE

PRIVATE INTERNATIONAL LAW - RESTRAINT OF PROCEEDINGS - OF FOREIGN PROCEEDINGS: ANTI SUIT INJUNCTIONS

PRIVATE INTERNATIONAL LAW - CHOICE OF LAW - DOCTRINE OF RENVOI

This is an application for direction pursuant to s 69 of the Administration and Probate Act 1919 (SA), or alternatively, a determination without administration pursuant to r 206 of the Supreme Court Civil Rules 2006 (SA) being relief which can be granted in proceedings for the judicial administration of the deceased estate of Hongtao Liu (the deceased).

The applicant is the widow of the deceased.  Pursuant to a grant of letters of administration made by this Court on 8 February 2019 she has been appointed the administrator of the deceased’s estate.  The respondent is the deceased’s mother.

Ancillary to the primary relief sought by the applicant she brings an application for an anti suit injunction permanently restraining the respondent, from taking any further steps to prosecute proceedings the respondent has instituted in the Peoples Republic of China (PRC) in relation to the moveable assets of the deceased’s estate. 

In these proceedings the applicant seeks a determination of the proper law by which the moveables of the deceased’s estate are to be distributed, wherever situated in the world.  The applicant contends that as the deceased was domiciled in South Australia at the date of his death, it is the law of South Australia that should determine the distribution of the moveable assets of his estate.  On the other hand, if the deceased, at the date of his death, was domiciled in China the Court is asked to determine the succession of the deceased’s intestate estate in accordance with Chinese law. 

Held in relation to domicle:

1.      the deceased and his family left China and moved to Australia in February 2012 with the intention of residing in Australia indefinitely;

2.      the intention of the deceased and his family, namely to reside in Australia indefinitely, did not change when the deceased and his family were granted permanent residency in Australia on 22 July 2013;

3.      the intention of the deceased and his family, namely to reside in Australia indefinitely, did not change when the deceased and his family were granted Australian citizenship on 26 August 2016;

4.      the deceased automatically lost Chinese citizenship on 26 August 2016 when he was granted Australian citizenship;

5.      at the date of his death on 9 November 2018, the deceased had not made any arrangements to return to China permanently in the near future, or at all;

6.      at the date of his death on 9 November 2018 the deceased’s place of residence was South Australia; and

7.      the deceased and his family had chosen Australia as their domicile of choice from at least 2013, and were domiciled in Australia at the time of the deceased’s death on 9 November 2018.

It is determined that the deceased's domicile at the date of his death was Australia and in particular, South Australia.  At the time of his death the deceased's place of residence was Australia and he intended to reside here indefinitely. 

Article 31 of the 2010 Law on Application of Laws to Foreign and Related Civil Relations provides that statutory succession shall be governed by the laws of the habitual residence of the deceased person at the time of death subject to a specific exception for the statutory succession to real property.  Pursuant to Article 20 of the 2010 Law where the laws of habitual residence apply but the habitual residence of the person is unclear, the laws of his current residence shall apply.  The issue of current residence is to be determined on the basis of the place where the deceased was considered to be currently residing at the time of death after excluding any trips for “medical treatment, labour dispatch, official duty and other similar circumstances”. 

Article 15 of the 2012 Interpretation defines habitual residence to mean the place a person has continuously lived for one year or more.  However, this one year test does not mean one continuous unbroken year.  Clearly there are exceptions to the one-year test, namely, medical treatment, labour dispatch, official duty and other similar circumstances.

Pursuant to article 25 of the General Provisions of the Civil Law of the PRC of 2017 if a person’s habitual residence is different from the person’s domicile, the habitual residence shall be deemed to be his or her domicile. 

The evidence establishes that at the date of his death the deceased’s habitual residence for the purposes of Chinese law was Australia, in particular South Australia.  The deceased was living in South Australia continuously for more than one year at the date of his death.  The evidence establishes that in the last year of his life he spent 227 days in Australia.  In the preceding year he spent 204 days in Australia.  On each occasion he left Australia to travel, except for the final trip to Japan, he returned to Australia.  He did so because Australia was his place of residence.  That is where he lived continuously living since 2012, and in particular for the year preceding his death. He did not live anywhere else. His life’s centre was Australia.

A determination without administration is made pursuant to r 206 of the Supreme Court Civil Rules 2006 (SA) that the deceased, Hongtao Liu, who died intestate on 9 November 2018, and whose estate was subject to a grant of letters of administration by this Court on 8 February 2019, was domiciled in South Australia at the date of his death. 

A permanent injunction is granted restraining the respondent from taking any further steps to prosecute the proceedings designated as (2019) Ji 0391 Civil 2420 in the People’s Court of Qinhuangdao Economic and Technical Development Zone, Hebei, People’s Republic of China, being the proceedings designated as (209) Ji 0302 Civil 5262 that were formerly in the Qinhuangdao, Haigang District People’s Court, Hebei, People’s Republic of China. 

Administration and Probate Act 1919 (SA) S 69; Domicile Act 1980 (SA) S 9; Evidence Act 1929 (SA) S 63; Succession Law of the People’s Republic of China 1985 Articles 10, 26 and 36; Civil Law of the People’s Republic of China 1986 Article 15; Civil Law of the People’s Republic of China 2017 Article 25; Nationality Law of the People’s Republic of China 1980 Articles 9, 10 , 11, 14; Marriage Law of the People’s Republic of China 2001 Article 17; Law of the People’s Republic of China on Application of Laws to Foreign and Related Civil Relations 2010 Articles 2, 20, 31 and 51; Inheritance (Family Provision) Act 1972 (SA); Supreme Court Civil Rules 2006 (SA) r 206, referred to.

LK v Director General, Department of Community Services (2009) 237 CLR 582; Re Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159; Fremlin v Fremlin (1913) 16 CLR 212; Societe Nationale Industrielle Aerospatiale v Lee Kui Jak (1987) 1 AC 871; Weinstock v Sarnat [2005] NSWSC 744; CSR Ltd v Cigna Australia (1997) 189 CLR 345; Stitchting Shell Pensionefonds v Kys [2015] SC 616, applied.

Bunbury v Bunbury (1839) 1 Beav 318; 48 ER 963; Hope v Carnegie (1866) 1 Ch App 320; Al-Bassam v Al-Bassam [2004] EWCA Civ 857; Bheekhun v Williams [1999] 2 FLR 229; Kaur & Narula [2007] FMCA Fam 657; Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; Re Ross; Simmonds v Simmonds (1917) 17 SR (NSW) 419, considered.

KONG v YAN
[2021] SASC 82

Civil

STANLEY J:

Introduction

1. This is an application for direction pursuant to s 69 of the Administration and Probate Act 1919 (SA), or alternatively, a determination without administration pursuant to r 206 of the Supreme Court Civil Rules 2006 (SA), being relief which can be granted in proceedings for the judicial administration of the deceased estate of Hongtao Liu (the deceased).  The applicant seeks a determination of the domicile of the deceased who died on 9 November 2018 in Tokyo, Japan.  The deceased was an Australian citizen who owned immoveable and moveable assets in Australia, the People’s Republic of China (PRC) and Hong Kong.  His estate is valued at approximately $AUD50,000,000 of which over $AUD10,000,000 is located in Australia.  The deceased died intestate.  He is survived by his widow, Xiangting Kong, the applicant in these proceedings.  The applicant is also an Australian citizen.  Pursuant to a grant of letters of administration made by this Court on 8 February 2019 she has been appointed the administrator of the deceased’s estate. 

2. The deceased and the applicant have two children who are also Australian citizens and minors.  Daniel was born on 13 December 2006 and Shirley was born on 8 January 2008. 

3. Ancillary to the primary relief sought by the applicant she brings an application for an anti‑suit injunction permanently restraining the respondent, who is the deceased’s widowed mother Junying Yan, from taking any further steps to prosecute proceedings she has instituted in the PRC in relation to the moveable assets of the deceased’s estate. 

4. There are four sets of legal proceedings in China relating to the assets of the deceased.  In the course of these proceedings they have been described as PRC 1, PRC 2, PRC 3 and PRC4.  PRC 1 was commenced on 4 April 2019 by the respondent to these proceedings in Qinhuangdao Haigang District People’s Court in the province of Hebei.  In PRC 1 the respondent seeks orders enforcing Chinese law in relation to the succession of the moveable assets of the deceased’s intestate estate.  Those assets form the largest part of his estate.

5. On 1 July 2019 the Chinese proceedings were transferred to the Qinhuangdao Economic and Technical Development Zone Court.

6. PRC 2 is in effect an application to set aside an agreement between the applicant and the respondent whereby the respondent waived any right to inherit all or part of the deceased’s estate.

7. PRC 3 and PRC 4 are proceedings that do not directly affect distribution of the assets of the deceased’s estate.  They relate to debts and share transfers of companies in China that were under the control of the deceased.  These include shares in City Power Supply & Equipment Co Ltd (City Power) in Qinhuangdao.  Those proceedings may indirectly affect the value of those assets. 

8. The proceedings in this Court concern the succession to the deceased’s moveable estate worldwide and the remedies to be granted in relation to the administration of that estate. 

9. In these proceedings the applicant seeks a determination of the proper law by which the moveables of the deceased’s estate are to be distributed, wherever situated in the world.  The applicant contends that as the deceased was domiciled in South Australia at the date of his death, it is the law of South Australia that should determine the distribution of the moveable assets of his estate.  On the other hand, if the deceased, at the date of his death, was domiciled in China, the Court is asked to determine the succession of the deceased’s intestate estate in accordance with Chinese law. 

10. The applicant contends that under Chinese law, the relevant test, in accordance with Article 31 of the Basic Law of The People’s Republic of China applicable to foreign related civil relations, is habitual residence.  If habitual residence is unclear or uncertain, Chinese law applies the test of current residence.  The applicant submits applying that test the Court will be satisfied that, at the date of his death, the deceased’s habitual residence was South Australia.  In the alternative, his current residence at the time of his death was South Australia.  The respondent agrees that the relevant test is habitual residence.  She submits that if habitual residence is unclear or uncertain, Chinese law applies the test of closest connection with the civil relationship in dispute.  She submits that at the date of the deceased’s death his habitual residence was unclear and his closest connection for the purposes of Chinese law was China. 

11. On the basis of his domicile at the date of his death or his habitual residence the applicant seeks a permanent anti-suit injunction restraining the respondent from continuing to prosecute the proceedings PRC 1 in China. 

12. An anti-suit injunction is an injunction in personam restraining a person within the jurisdiction of the Court from taking action against assets located outside the jurisdiction.  I will come back to this.  In this case the applicant, as administrator, asks the Court to exercise the power to restrain the respondent from taking further steps in China in relation to the deceased estate’s moveable assets, to permit the applicant to take possession of those assets and distribute them in accordance with the proper law, which the applicant submits in this case is the law of South Australia. 

13. The first issue is that of domicile.  The determination of the deceased’s domicile is relevant both to the anti-suit injunction and the determination of the proper law by which the moveable assets of the estate are to be distributed.

    Domicile

14. Australian law is that the succession to the moveables of a deceased estate is governed by the law of his domicile at the time of his death.[1]  As a matter of the succession of the estate this Court applies the law of South Australia.  Where there is the potential for a conflict of law, this Court applies the test of domicile as the relevant choice of law rule. 

    [1]    Davies, Bell, Brereton and Douglas, Nygh’s Conflict of Laws in Australia (10^th ed. 2020) at [38.4].

15. Every person is born with a domicile of origin.  The domicile of origin is the domicile ascribed to each individual at birth by a force of law.  The common law provides that at birth a nuptial child takes the domicile of its father.[2]  A person is capable of changing their domicile from a domicile of origin to a domicile of choice.  A person acquires a domicile of choice in a country by being lawfully present there with the intention of remaining in that country indefinitely.[3]  The issue of intention is of decisive importance.[4]

    [2]    Davies, Bell and Brereton, Nygh’s Conflict of Laws in Australia (9^th ed. 2014) at [13.13].

    [3]    Domicile Act 1980 (SA) s 9.

    [4]    LK v Director General, Department of Community Services (2009) 237 CLR 582 at[24].

16. Section 9 of the Domicile Act 1980 (SA) (Domicile Act) provides that the intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country.

17. The relevant principles in relation to domicile are helpfully explained in Re Application of Perpetual Trustee Company Ltd; Re:  Estate of the late Evelyn Mary Dempsey[5] where Slattery J said:[6]

    The law in relation to domicile of choice may be shortly stated. At common law it could be difficult to prove that a person had the requisite intention to acquire a domicile of choice; it being presumed that a person exchanged a domicile of origin for a domicile of choice with the greatest of reluctance. The onus of proving the abandonment of domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change and the standard of proof is on the balance of probabilities: Nygh at [13.23]. But the statutory position is that the acquisition of a domicile of choice in place of a domicile of origin may be established by evidence that would be sufficient to establish the domicile of choice if the previous domicile had been a domicile of choice: Domicile Act, s 11. Thus the onus of proof to establish the departure from a domicile of origin is now no heavier than it would be to establish the change from one domicile to another.

    The statutory intention a person must have to acquire a domicile of choice in a country is “the intention to make his or her home indefinitely in that country”: Domicile Act, s 9. And the rule of law whereby the domicile of origin revives upon the abandonment of a domicile of choice, without the acquisition of a new domicile of choice is now abolished: Domicile Act, s 6. But the statutory test for acquiring a domicile choice in a country is the same as the test at common law, namely that the person acquires a domicile of choice in a country by being lawfully present there with the intention of remaining in that country indefinitely: Nygh at [13.19] – [13.20].

    Two elements must be satisfied to acquire a domicile of choice: physical presence and intention. Provided the intention can be proved to exist, the length of presence in the jurisdiction is immaterial: Nygh at [13.19].

    The necessary mental element to obtain a domicile of choice has sometimes been described as “an intention to reside permanently or indefinitely in a country”: Nygh at [13.19]. The term “permanent” in the formula is nothing more than a way of indicating that the person’s intention is one which when formed is one to remain a resident of the country for a period then regarded by him or her as unlimited in time and without having addressed himself or herself to the question of giving up such residence and leaving the country of his or her choice upon the happening of some particular and definite event in the foreseeable future, notwithstanding that he or she may entertain a “floating” intention to return at some future period of time to his or her native country: Hyland v Hyland per Asprey JA. The distinction is sometimes seen as one between a definite intent to return or move on and a “floating intention”, but the question must be considered objectively: Nygh at [13.19]. An objective assessment means that it is not so much the hopes and expectations of the person concerned that is at issue but the probability in his or her assessment of the contingencies he or she has in contemplation being transformed into actualities: Nygh at [13.19]. The correct construction of the statutory test under Domicile Act, s 9 is that it may only clarify and does not change the common law test: In the Marriage of Henry, reversed by the High Court on other grounds – Henry v Henry, and see Nygh at [13.20].

    At common law a domicile of choice was abandoned when a person left the territory of the existing domicile with the intention of never returning or, having left that territory at first for a limited duration, subsequently formed the intention not to return: Nygh at [13.21]. However in order to abandon an existing domicile it is not necessary to severe all links with the country of the former domicile. Thus a party will acquire a new domicile when he or she establishes that his or her principal residence is in another country, even though he or she retains a residence in the country of former domicile for business, study or other purposes: Plummer v Inland Revenue Commissioners at 106. For example a Fijian domiciliary has been held to have acquired an Australian domicile of choice while retaining a home in Fiji: Ferrier Watson v McElrath.

    A person’s presence in a particular place raises the presumption of domicile there: Re McKenzie at 298, per Sugarman J. But this statement may be no more than an indication that in the absence of any other evidence such presence constitutes sufficient evidence from which the existence of a domicile at that place can be inferred and if other evidence is available the fact of presence is merely one of many factors to be considered: Nygh at [13.26]. Intention in the main should be deduced from behaviour rather than a person’s own declaration, but “honest evidence of actual intention cannot be cast aside and treated as non-existent and some sound reason must be found for disbelieving it”: Fremlin v Fremlin at 234 and see Nygh at [13.26].

    The importance of any one fact is relative and the ultimate question is always - what is the proper conclusion to be drawn from all the circumstances: Re Cartier at 291 and se Nygh at [13.26].

    [citations omitted].

    [5] [2016] NSWSC 159.

    [6] [2016] NSWSC 159 at [174]-[180].

1. In this case there is no dispute that the deceased’s father was a citizen of the PRC and that the deceased was born in China. Accordingly, there is no issue that the deceased’s domicile of origin was China. The question is whether in the circumstances of this case the deceased acquired a further domicile being his domicile of choice. In accordance with the terms of s 9 of the Domicile Act the issue is whether the deceased had an intention to make his home indefinitely in Australia. There are two elements to establish a domicile of choice: physical presence and intention. I do not understand there to be any dispute in respect of the question of physical presence. The deceased lived in Adelaide from 2012 until his death in 2018. In any event, I am satisfied that at the time of his death the deceased’s physical presence, for the purpose of determining his domicile, was Australia. The fact he died in Japan is irrelevant. No party suggests his physical presence was Japan. He was merely passing through. A domicile of choice is to be decided first by finding the country in which a person resides. At the time of his death the deceased resided in Australia. What is in issue is his intention. The contest on the evidence is whether the deceased had an intention as at the date of his death to make his home indefinitely in Australia and abandon his domicile in China.

2. There is a stark conflict in the evidence of the various witnesses from whom the Court heard.  The applicant and the witnesses she called gave evidence of statements made by the deceased to the effect that he intended to reside permanently in Australia after moving here in 2012 and subsequently attaining the status of a permanent resident and later acquiring Australian citizenship.  On the other hand, the respondent and her witnesses gave evidence to the effect that at various times the deceased made statements that at some time in the future he intended to return to China to live.

3. The applicant contends that whatever it is alleged the applicant may have said from time to time, and on the evidence, if it is to be believed, he made wholly contradictory statements concerning his intentions concerning where he would reside in the future, the objective evidence provides cogent support for an inference that the deceased intended to reside indefinitely in Australia. 

4. In addition, the applicant submits that in accordance with Chinese law, the deceased ceased to be a Chinese citizen in August 2016 when he became an Australian citizen. 

5. The applicant contends that in the event the Court finds that at the date of the deceased’s death his domicile was Australia then the distribution of the moveable and immoveable assets of his estate is to be determined in accordance with the law of South Australia relating to intestacy. 

6. In the alterative, the applicant contends that if the Court finds that, at the date of the deceased’s death, his domicile was China then this Court should apply the doctrine of renvoi and decide the question of the distribution of the moveable and immoveable assets of his intestate estate in accordance with Chinese law. 

   What was the deceased’s domicile?

7. For the reasons that follow I find that the deceased’s domicile under Australian law at the date of his death was South Australia.  I am satisfied on the evidence that, as at the date of his death, the deceased had changed his domicile from China to Australia.  I find that the deceased had the intention to make his home indefinitely in this country.  This intention was formed, at the latest, by 24 August 2016, when he and his family acquired Australian citizenship.  That intention was unchanged at the date of his death. 

8. There was considerable evidence called by each party from various witnesses of statements made by the deceased from time to time which, it was submitted, evidenced either an intention to make his home indefinitely in Australia, or an intention to return to China to care for his mother and live out his life in the country of his birth and his ancestors. 

9. The evidence of statements made by the deceased relevant to his intention are contradictory.  It is difficult to know what to make of this conflict in the evidence.  One possibility is that I should reject the evidence of one party’s witnesses in favour of accepting the evidence of another party’s witnesses on the basis that the rejected evidence is unreliable.  Each party urged me to adopt that approach but each contending for different findings.  A second approach would be to find that each time the deceased made statements of this kind he was expressing a momentary intention which was subsequently overtaken by a change of mind.  On this basis I could accept the reliability of this evidence from all the witnesses called to testify on this topic.  A third alternative is to find that from time to time the deceased made statements to others that did not necessarily accurately reflect his intentions at the time but that he made such statements to placate the person with whom he was speaking.  On that basis I could not accept the reliability of that evidence.  The three alternatives present the difficulty of ascertaining at any particular time the true intention of the deceased recognising that the issue is his intention at the time of his death.  In these circumstances there is much to commend the approach enunciated in Fremlin v Fremlin[7] by Isaacs J[8] that while an intention is to be judged on all available testimony, conduct is the most important because it is the most reliable.  Isaacs J said:[9]

   A man’s own declarations are, of course, admissible in evidence, but, as laid down by the Privy Council in McMullen v Wadsworth, the doctrine of the Roman Law still holds good, that “It is not by naked assertion, but by deeds and acts, that a domicil is established.” 

   Naked assertion without deeds and acts would be useless, and the assertion consistent with deeds and acts is equally useless to control them. 

   [7] (1913) 16 CLR 212.

   [8] (1913) 16 CLR 212 at 234.

   [9] (1913) 16 CLR 212 at 234.

10. This approach emphasises the importance of making findings of fact as to a person’s intention by reference to objective evidence of conduct which reveals a person’s true intentions. 

11. In making findings in relation to the deceased’s intentions I consider the best evidence is objective evidence of conduct or behaviour from which inferences can be drawn as to his intention as at the date of his death.  That was the approach taken in Dempsey.  It is the approach I have taken.  As a result, the conclusion that the objective evidence supports a finding that at the date of death, the deceased intended to reside indefinitely in Australia, establishes the likelihood that the evidence of statements of intention allegedly made by the deceased to the applicant’s witnesses is true.

12. That objective evidence is that the deceased, the applicant and their children migrated to Australia from China in February 2012.  The deceased purchased a substantial home in Harrow Road, St Peters.  The deceased and his family lived in that home in South Australia from 2012 until his death in 2018.  In 2013 they became permanent residents of Australia, and in 2016 acquired Australian citizenship.  In applying for Australian citizenship both the deceased and the applicant declared that they intended to reside or continue to reside in Australia, or maintain a close and continuing association with Australia.

13. A grant of permanent residence, and, indeed, citizenship, is cogent evidence of an intention to live permanently in that country, albeit it is not conclusive.[10]

    [10] Bheekhun v Williams [1999] 2 Family Law Reports 229 at 239; Kaur & Narula [2007] FMCA Fam 657 at [23].

14. I am satisfied on the evidence that their move to Australia was some years in planning.  I accept the applicant’s evidence that in 2008 she and the deceased decided to move to Adelaide.  They purchased residential property, cars and a boat in South Australia.  They brought furniture from China.  The deceased established at least three companies and set up family or investment trusts, purchased investment properties, acquired interests in a restaurant and vineyard business and opened bank accounts.  The children of the deceased and the applicant enrolled in local schools and established a life in Adelaide. 

15. While the onus lies on the party asserting a change of domicile, in this case, where the objective evidence indicates the fact and the intention of the deceased to change his domicile from China to Australia, the respondent bears an evidentiary onus to prove that, notwithstanding the objective evidence, the deceased intended to maintain China as his domicile and return to live there on an indefinite basis in the foreseeable future.  Otherwise, given the manner in which the trial was conducted, the applicant was left to prove a negative, namely, that the deceased had no intention to return to live permanently in China and did not make statements that he intended to do so.  The respondent’s case substantially relies, not on objective evidence, but on evidence of statements allegedly made by the deceased reflecting his subjective intention.

    Respondent’s evidence of the deceased’s intentions

16. The respondent gave evidence that in 2010 the deceased said that he had some issues that required him to leave Qinhuangdao and that City Power was under investigation by the local People’s Prosecutorial office.  As a result, he had to leave Qinhuangdao, but that when everything settled down he would return.  She said that in February 2012 the deceased moved to Australia for the children’s education, the better air quality, and to avoid the investigation into City Power.  She said he told her that when the children grew up, the family would return to China.  Later in 2012 she said the deceased told her the investigation into City Power had finished.  The respondent said that in February 2018 she came to Adelaide and stayed with the family for about two months.  She said the deceased told her that he intended to return to China earlier than originally planned as he could not make big money in Australia, where he had lost a lot of money, and that he wanted the children to go to university in China to learn and retain traditional Chinese culture.  He said that Daniel was quiet and did not fit in with Australian culture and was bullied.  She said she had a further conversation with the deceased in October 2018 shortly before his death when he said that he was intending to return to China to make some more money for the three children, being Daniel, Shirley and Liu Liu.[11] 

    [11] Liu Liu was the deceased’s niece. 

17. Hongbin Liu (Hongbin) is the deceased’s brother.  He lives in Qinhuangdao.  He is the father of Liu Liu.  He gave evidence that between 2012 and 2018 he and the respondent spoke to the deceased on a number of occasions.  The deceased said he had three main purposes for obtaining Australian citizenship.  They were to transfer money from China to Australia, to avoid criminal charges, public prosecutions and other commercial issues associated with his businesses in China, and so that the children could enjoy good primary and secondary educations and better air quality in Australia.  He said the deceased claimed that by having a foreign passport, his children would be exempted from the highly competitive entry exams for Chinese universities.  He said that on a number of occasions the deceased told him his plan was to return to China by 2020 at the latest and the rest of the family would gradually return to China as the two children finished their high school studies.  He claimed that in August 2018 the deceased said to him that he had suffered from depression and anxiety in 2016 due to loneliness and boredom in Australia and problems with his business.  He said the deceased told him he had lost consciousness a few times for unknown reasons, once in Sydney and once at St Peters.  This made him bring forward his plans to return to China.  This would be convenient because the local government in Qinhuangdao was going to change the zoning of the land owned by City Power to commercial use.  He claimed the deceased told him that in 2019 his life and business focus would return to China and that he was preparing to undertake a property development project using the City Power land.  The deceased further said to Hongbin that the respondent is elderly and Hongbin has sacrificed too much caring for her while he has been managing the accumulated fortune of the Liu family.  The deceased said he was using the family money to purchase a property for Liu Liu in Australia.  He said the deceased told him that it was only Hongbin who had looked after their mother and it was time for the deceased to fulfil his duty as a son.  The deceased said he would be spending more time with the respondent, and that the purpose of the children’s education in Australia was basically achieved.  As the children had been receiving tutoring in Chinese, whenever they returned to China there would be no problem with them studying at a Chinese university.

18. Liu Liu gave evidence that in the last two years of his life the deceased told her that he explored every possible option to hold a valid passport for both China and Australia.  She gave evidence that he told her that “it is very troublesome but I must keep my Chinese passport for my future return to China”.  She said that the deceased told her and her husband Fuhai Liu (Fuhai) that his personal and business connections and networks in Qinhuangdao remained strong, and his primary business focus had always been in China.  He had only left Qinhuangdao so his name would fade among the local people because of historical business problems from around 2008, and that he hoped to return there again for business.  He regularly spoke about his plans to return to China so he could focus on his Chinese business, and that he planned to retire in Zhuhai. 

    Applicant’s evidence of the deceased’s intentions

19. This evidence of statements allegedly made by the deceased as to his subjective intentions concerning a return to China are contradicted by the evidence of the applicant, Mr Edwards and Shao Fei Liang (Fei). 

20. Each gave evidence that the deceased did not advise them at any time since 2012 when the deceased, the applicant and their children moved to Australia, that the deceased had any plan or intention to return to China to live permanently.

21. On the contrary, the applicant gave evidence that not only did the deceased not tell her he had any intention to go back to China but their discussions as to the future always related to Australia.  The children were happy at school and there were no plans to return to China to live once their secondary schooling was completed in Australia.  She was unaware of any criminal charges or prosecutions with respect to the deceased’s businesses in China.  The deceased was happy in Australia.  The deceased did not have a close relationship with the respondent or his brother.  The respondent did not come and stay with the family at the St Peters residence for about two months in February 2018. 

22. Mr Edwards gave evidence of being told by the deceased that he loved Australia, the weather, the blue sky, and the fishing here.  The deceased said it was very good in Australia.  He recalls the deceased telling him that he applied for Australian citizenship for himself and his family because he did not want to go back to live in China and he loved his life in Australia.  He spoke of his business interests in China without ever suggesting that they required him to return to live there. 

23. Fei gave evidence that since the deceased, the applicant and their children moved to Adelaide in 2012 she saw them almost every day.  She was employed by the deceased’s businesses.  At no stage did the deceased ever say that he wanted to go back to live in China.  On the contrary, on each occasion he returned from travel to China he said he did not want to go back to China.  He said he felt comfortable in Australia where everything is better.  She overheard him telling friends from China how great it was to live in Australia.  He did not express any desire to return to China to focus on his businesses there.  Further, she observed the children attend birthday parties and other gatherings with friends.  They had friends over after school and on weekends. 

24. Neither the applicant nor Fei observed any obvious sign of the deceased suffering from depression or complaining that he was depressed.  They also denied that the children had a Chinese language tutor.

    At date of death the deceased intended to reside indefinitely in Australia

25. Apart from evidence of statements allegedly made by the deceased there is no evidence that as at the date of his death he had taken any steps to arrange a return of himself and his family to China in the near future or at all. 

26. I am not persuaded that the deceased expressed an intention from 2012 to maintain China as his permanent residence.  If I am wrong about that, and such statements were made by him, I am not satisfied that he was speaking truthfully at the time.  It is plausible that he might have sought to deceive the respondent and Hongbin to keep them happy, and because they were so close to Liu Liu and Fuhai, he said the same to them.  On the other hand, the respondent necessarily must contend that the deceased was planning a permanent return to China without discussing this move with the applicant.  I am not prepared to accept that this occurred.  The evidence does not support a finding that the applicant would have been content in 2018 or soon thereafter to return to reside permanently in China.[12]  On the contrary, she gave evidence of efforts being made to obtain permanent residency in Australia for her mother.  A unilateral decision to return to China would be contrary to the approach taken by the deceased and the applicant in deciding to move to Australia.  There was extensive discussion before this was decided.  This renders it unlikely that the deceased would have taken a different approach if he had in contemplation a return to reside permanently in China. 

    [12] First affidavit of applicant para [29].

27. I am reinforced in this view by the evidence of Mr Edwards.  I accept his evidence that he was a friend and business advisor of the deceased.  He had known the deceased since 2007.  This is corroborated by the applicant.  He has no interest in the outcome of the proceedings.  I consider him to be objective.  I accept his evidence that the deceased loved living in Australia and that he applied for Australian citizenship because he did not want to return to live in China. 

28. While the evidence establishes that the deceased and his family took regular holidays to China in the period after they migrated to Australia, conducted business in China and encouraged his children to learn Chinese language[13] and culture, that is not inconsistent with the deceased shifting his domicile from China to Australia.  The frequency of the deceased’s travel to China is not inconsistent with a change of domicile to Australia.  The deceased was a wealthy man.  Plainly he could afford to travel frequently.  A change in domicile is not undermined by evidence that the deceased wished to maintain contact with his friends in China. 

    [13] There is evidence the applicant taught the children Chinese.

29. A desire to maintain relationships with family and friends in China, to conduct business in China, and even to want to foster an understanding and appreciation of Chinese language, culture and heritage in their children, does not necessarily evidence an intention to maintain a domicile of origin in China.  As is made clear in Dempsey, in order to abandon an existing domicile, it is not necessary to sever all links with the country of the former domicile.  A person will acquire a new domicile when he establishes that his principal residence is in another country, even though he retains a residence in the country of former domicile for business, study or other purposes.   Even if a person may entertain a “floating” intention to return to the country of former domicile, that person will acquire a domicile of choice where that person resides, and intends to reside permanently or indefinitely, in the country of domicile of choice.  I am not able to make a positive finding that the deceased held such a floating intention at the time of death, but even if he did, that would not be inconsistent with his domicile of choice being Australia. 

1. I am not persuaded from finding that at the time of his death the deceased lacked the intention to reside indefinitely in Australia by the fact that he continued to travel to China using his Chinese passport.  I am satisfied that this was a mere matter of convenience rather than evidence of some intention to return to China in the not too distance future for the purposes of residing there indefinitely.  The deceased used his Australian passport as well as his Chinese passport.  On his final flight to Japan he used his Australian passport.  For similar reasons, I do not consider that his possession of a PRC identity card[14] which referred to his Chinese address, and which was issued on 22 November 2012, i.e. before the deceased acquired permanent residency and Australian citizenship, was anything more than a convenience rather than evidence of an intention to maintain China as his domicile.  Likewise, the household registration card[15] that was issued[16] before the deceased acquired permanent residency and Australian citizenship is of little or no weight in deciding the deceased’s intentions as at the date of his death. 

   [14] Exhibit R27.

   [15] Exhibit R28.

   [16] Exhibit R28 was issued on 22 March 2014. 

2. Moreover, there were some aspects of the respondent’s case which I found implausible.

3. It was common ground that the applicant and the deceased decided to move to Australia for the education of their children and to take advantage of Australia’s healthier climate and environment.  The respondent and Hongbin claim that in addition the deceased decided to leave China to avoid the imposition of penalties by the Chinese government.  The respondent gave evidence that in about 2010 the deceased told her that there was a government investigation into City Power regarding taxation matters.  However, she further gave evidence that in about 2012 the deceased told her that the investigation had concluded and that he was able to return to China “with a light heart”.[17]  On the other hand, Hongbin said that the deceased told him the reason he was leaving China and obtaining permanent residency and Australian citizenship was to avoid criminal charges or investigations in China.  He said this conversation was in early 2012.  His evidence was that the police investigation concerned what he described as an underground banking money transfer.  However, he was unaware of the detail of these matters as the deceased did not want to tell him because he did not want Hongbin to worry.  Yet he said that the deceased told him that the Chinese police had received an investigation order against him from the Hong Kong police. 

   [17] T 416.23-25.

4. There was no documentary evidence adduced to substantiate these claims that the deceased moved to Australia or wanted to obtain permanent residency and acquire Australian citizenship for this reason.  In addition, Hongbin’s claim that the deceased told him that one of the reasons for becoming a permanent resident and later a citizen of Australia was to avoid criminal charges in China, is unlikely for two reasons.  

5. First, according to the respondent, by the time the deceased obtained permanent residency and later Australian citizenship, the criminal investigation had concluded some years earlier.  In circumstances where the deceased went on to obtain permanent residency and Australian citizenship over the course of the following four years, this alleged investigation cannot explain why the deceased continued to reside permanently in Australia and acquire Australian citizenship.  On the contrary, that the deceased continued to reside in Australia after these alleged difficulties in China were resolved, indicates the unlikelihood that his ostensible problem of a Chinese criminal investigation explained his application for permanent residency and Australian citizenship.  If that was a significant reason for moving to Australia in 2012 there was no evidence of the deceased changing his plans and making arrangements to return to China permanently between then and his death. 

6. Second, it is difficult to understand how moving to Australia and/or obtaining permanent residency and citizenship would avoid a police investigation in China, particularly in circumstances where, between 2012 and 2018, the deceased regularly returned to China using his Chinese passport.  In addition, Hongbin gave evidence that in August 2018 the deceased told him that in 2019 he would switch back his life and business to China.  This was because of development opportunities in relation to the City Power land and because the purpose of the children’s education had been basically completed.

7. Instead, I infer from the frequency of his travel to China in the period after he was granted permanent residency and Australian citizenship that he did not feel under any threat in returning to China given he was an Australian citizen. 

8. Again there is no documentary evidence to support the claim that the deceased had made a decision to return to live permanently in China in 2019 because of his wish to exploit a commercial opportunity involving the development of City Power land in Qinhuangdao.  There is no documentary evidence of arrangements being made for his return to reside in China on an indefinite basis.  The evidence supporting this claim is confined to oral statements allegedly made by the deceased.  Further, there is no evidence that the deceased could not have pursued that commercial opportunity while maintaining domicile in Australia. 

9. The respondent submits that there cannot be any serious doubt that the deceased continued to control the affairs of City Power.  The evidence is insufficient to support a positive finding in this regard.  Nonetheless, assuming that to be the case, the fact is that the deceased had plainly enjoyed success in business in China.  It does not follow logically that a decision to make his permanent residence Australia necessitated him liquidating his assets and business interests in China or transferring those interests to Australia.  There is no necessary inconsistency between changing his place of domicile from China to Australia while maintaining business interests and investments in China.  Dempsey stands for this proposition.  An exercise in tallying where the majority of his business investments were at the time of his death is not a persuasive approach to determining his place of domicile.  It is not necessarily inconsistent with a change in domicile that a person leaves behind assets in the domicile of origin.  A shrewd man of business might have many reasons for preserving assets and business interests in his domicile of origin while changing his domicile to his domicile of choice.  That a person intends to reside permanently in a new country while continuing to do business in his domicile of origin is not implausible. 

10. Glaringly, the claim that the deceased had said to Hongbin that the purpose for the children’s education in Australia had basically been completed cannot be reconciled with the fact that at that time Daniel was 11 years old and in Year 6 at school and Shirley was 10 years old and in Year 5.  Neither of them had commenced high school.  It makes no sense as claimed by the respondent and Hongbin for the deceased to decide to move back to China at that time with the attendant need to integrate his children into the Chinese education system when there is no dispute that a significant reason for moving to Australia in the first place was for the children’s education.  This forced Hongbin into the position of asserting that the deceased told him that he would return to China in 2019 and the rest of the family would gradually return to China as the children finished high school in Australia.  That would have involved an effective separation until 2025 when Shirley would have been due to complete Year 12.  I find that to be inherently unlikely. 

11. I am also unprepared to accept Hongbin’s evidence that in August 2018 the deceased told him that it was time he (the deceased) fulfilled his duty to care for their mother and that Hongbin had sacrificed too much for him (the deceased).  Not only is this inconsistent with the evidence of Mr Edwards and Fei, but if the deceased had intended to take greater responsibility for caring for his mother I would have expected him to have done so earlier.  That this statement was ostensibly made at the same time as the deceased supposedly suggesting that the purpose of the children’s education was basically achieved, reinforces my doubt that any of this was said by the deceased.  Moreover, his evidence is inconsistent with the fact that in 2018 the children’s secondary education would not be completed before the end of 2025.  I cannot accept that the deceased had formed an intention in 2018 to return to China the following year to care for his mother and leave his family in Adelaide until the completion of the children’s secondary education. 

12. Tellingly, Hongbin’s evidence that in August 2018 the deceased told him that in 2019 his life and business focus would return to China, is premised on the proposition that at that time of the conversation his life and business focus was not in China, but Australia.

13. Also, Hongbin’s claim that in the same conversation the deceased said that he was using the family money to purchase a property for Liu Liu in Australia finds no support in the evidence.  In 2009 the deceased purchased a property in Brisbane registered in Liu Liu’s name, because at that time he was not entitled to own property in Australia.  By 2018 that was no longer the case.  The property was sold by 2015.  Liu Liu did not give evidence that in 2018 the deceased promised her that he would purchase a house for her and Fuhai.  If that had been his intention, I would have expected him to do so. 

14. A further factor that influences my view of the reliability of Hongbin’s evidence was that he frequently had resort to reading from his affidavit in answer to questions in cross-examination rather than relying upon his memory.  An example of this occurred when he was giving evidence on this very topic of statements made by the deceased to Hongbin in 2018 of his supposed intention shortly to return permanently to China.[18]  As against these matters, the respondent submits I should accept Hongbin’s evidence because he gave an account of who slept in which room at Zhuhai and the colour of the sheets.  I do not accept this submission.  In the circumstances I do not give any weight to Hongbin’s evidence of conversations he alleged occurred between himself and the deceased concerning the deceased’s intentions to return to China. 

    [18] T 348-349.

15. I am also unable to rely upon the evidence of Liu Liu.  Not only was her evidence in significant detail inconsistent with the evidence of the applicant, whose evidence I generally accept, but her reliability was substantially undermined by her evidence of assisting the applicant to find a Chinese tutor for Daniel and Shirley.  Not only was this evidence contradicted by the applicant’s evidence, but in support of her claim, Liu Liu produced in cross-examination a document that had not been discovered,[19] being a screenshot of a WeChat message which she claimed was evidence of her investigating the availability of a Chinese language tutor for the children.  But the WeChat message did not refer to a Chinese language tutor but to an English language tutor.  The exhibit had no probative value in supporting her evidence that the applicant had enlisted her support to obtain a Chinese language tutor for the children.  The WeChat message was merely an unsolicited enquiry concerning English primary level teachers. 

    [19] Exhibit R11.

16. I reject Liu Liu’s evidence that Daniel was unhappy at school, bullied and had no friends.  As I have observed earlier, this is contrary to the evidence of the applicant and Fei. 

17. I also reject Liu Liu’s evidence that the deceased had said to her that the only reason he left China in 2012 was so his name would fade among the local people of Qinhuangdao because of historical business problems.  First, I am not satisfied that this was a reason he gave for moving to Australia.  Second, any suggestion that this was the only reason for leaving China in 2012 is completely contrary to the evidence of the applicant and the respondent that the move was motivated either in whole or in part by consideration of the children’s education and because of the cleaner and healthier environment in Australia.   Third, these alleged statements by the deceased were made years after he supposedly told the respondent that his problems with the police and the authorities in Qinhuangdao had gone away.  Fourth, his statement that his primary business focus had always been in China is inconsistent with Hongbin’s evidence that in August 2018 the deceased was saying that in 2019 his life and business focus would return to China. 

18. I also do not accept the deceased told Liu Liu that it was “very troublesome” to keep his Chinese passport but he had to do so for his future return to China.  I accept that the retention of his Chinese passport was convenient for the deceased given the frequency of his travel to China from 2012 until his death.  But there is no evidence that the retention and use by him of his Chinese passport was “very troublesome”. 

19. There was evidence from Mr Edwards that the deceased said he was not happy with Liu Liu’s work and wanted her out of the business.  In addition, following the death of the deceased, there was a breakdown in the relationship between Liu Liu and the applicant.  This saw Liu Liu, Fuhai and the respondent evicted from the house they occupied rent-free in Maylands.  The applicant made a police complaint against them relating to missing furniture.  I am satisfied this has coloured her evidence.  Also, I consider her evidence is influenced by her wish to support the evidence of her father, Hongbin. 

20. I am prepared to give very limited weight only to the evidence of Fuhai.  It is largely consistent with Liu Liu’s evidence upon which I am not prepared to rely.  It may be he felt constrained to support his wife’s evidence.  I cannot say.  I found his evidence of very limited assistance in making findings of fact as to the deceased’s intentions concerning his domicile at the date of his death.  His evidence of conversations with the deceased are inconsistent with both the objective evidence and the evidence of the applicant whom I generally accept.  His evidence goes no further than to confirm Liu Liu’s evidence that in 2016 and 2017 the deceased regularly spoke of his plans to return to China to focus on his Chinese businesses.  Interestingly, he did not corroborate other aspects of his wife’s evidence concerning statements made by the deceased at family dinners they attended such as the statement that the deceased only left Qinhuangdao so his name could fade among the local people because of business problems from around 2008, his business failures and investment losses in Australia. 

21. I was troubled by aspects of the respondent’s evidence.  Notwithstanding the fact of the Chinese proceedings, she asserted that she intended to leave all her properties to Daniel in circumstances where she has no will; there is no other evidence of such an intention; and there is no rational basis to bring the Chinese proceedings, which effectively reduce Daniel’s entitlement to his father’s assets, if the intention is all along to give those assets to him.  Further the respondent and the applicant entered into a civil mediation agreement concerning the distribution of the deceased’s immoveable assets in China.  There was no rational basis to enter into the civil mediation agreement, the effect of which is to agree which immoveable assets in China she will acquire, if it is her intention to give those assets to Daniel.  Her conduct does not support her stated intention.  She explained she brought the Chinese proceedings against the applicant and the children “because … the law is fair, and the law will let me know how much I can get”.   I do not accept that explanation. 

22. The respondent appeared to have little understanding of the Chinese proceedings.  She referred to PRC 3 and PRC 4 as being the same cause of action.  She had a limited appreciation of the verdicts in those two proceedings which resulted in her being awarded about 21,000,000 Chinese Yuan, which is the equivalent of $AUD4,100,000.  She was unable to recall the details of PRC 1 and PRC 2.  She appeared confused as to the status of PRC 1.  She wrongly asserted that a “first trial” had concluded in that action and had found in her favour.  She asserted wrongly that there was an appeal (“second trial”) on foot in respect of that action.[20]

    [20] T 410.2-20.

23. The respondent was also unable to recall the detail of the property owned by the deceased in China.[21]  This is in circumstances where the property owned by the deceased in China is the subject of PRC 1 which she claims she is entitled to inherit in part.[22]  Some of that same property forms the subject matter of the civil mediation agreement between her and the applicant which distributes the deceased’s removeable assets in China.

    [21] T 408.4-11.

    [22] Exhibit A1, tab 25: page 258.

24. I accept that Hongbin is the person giving instructions to the respondent’s lawyers in China.[23]  I infer that he is the driving mind behind the Chinese proceedings and it is he who stands to inherit upon the respondent’s death.  Accordingly, I am satisfied that the respondent attempted to mislead the Court that notwithstanding the Chinese proceedings she intends to benefit Daniel. 

    [23] T 296-297, 360.

25. I am also not satisfied that the deceased told the respondent before he moved to Australia that one of the reasons for doing so was to avoid investigations into City Power regarding taxation matters.  When asked in cross-examination whether she had asked the deceased what this was all about, she responded that she did not understand those matters and the deceased would not give her the details.  It is difficult to understand how she could assess whether she could understand these matters if the deceased refrained from telling her the details.[24]

    [24] T 415.17-18.

26. For the reasons explained above in relation to Hongbin, I do not accept that the deceased ever proffered as a reason for moving to Australia the need to avoid an investigation into City Power.  For these reasons I am not prepared to rely upon the respondent’s evidence. 

27. There are other aspects of the respondent’s case I do not accept. 

28. There is no documentary evidence to support the claim by Hongbin and Liu Liu of business failures and investment losses suffered by the deceased in Australia.  That suggestion seems to be contradicted by the respondent’s evidence that the deceased expected the sale of the winery would result in a good price.  Further, the rosy portrait the respondent’s witnesses painted of the deceased’s business dealings in China is not reflected in the $AUD4,000,000 loss on the Shiji real estate dispute. 

29. The respondent points to the deceased and the applicant taking their children to visit the campus of Tsinghua University on one of their many trips to China as evidence of his intention to maintain his domicile in China.  I reject this submission.  I accept that the deceased may have entertained the thought of his children attending one of the more distinguished Chinese universities such as Beijing University or Tsinghua University, but that was in a context where he also hoped that they might attend any of the leading universities in the world such as Oxford or Cambridge.  In any event, in 2018 the question of where the children would be attending university would not have arisen for another seven or nine years respectively.  If either of the children eventually decided to attend a Chinese university it is not possible to find that this would have provided a reason for returning to live in China in 2019. 

1. The respondent seeks to rely upon evidence of a submission put in PRC 4 by the lawyers retained by City Power.  These submissions allegedly were put in 2021.  The submission refers to the deceased’s immigration to Australia in 2012.  The submission asserts that there was no real change with his life, the centre of his life was still in China.  It is asserted that this submission must have been put on instructions from the applicant.  That is merely an assumption.  There is no evidence to support the proposition.  More fundamentally, the respondent’s reliance on the transcript of the hearing depends upon its accuracy.  The applicant is not a party to these proceedings and the first she learned about the purported transcript was during cross-examination of Hongbin.  The completeness and accuracy of the transcript is disputed and has been disputed by the lawyer acting for City Power.  In any event, if the submission was put, it was in the context of events relating to the closure of a real estate business in China in 2013.  It has little probative weight in relation to the deceased’s intentions at the time of his death. 

2. The respondent also relies upon the applicant’s conduct in Japan following the deceased’s death where she said that the deceased’s address for insertion on the death certificate was China.  I do not accept this submission.  The conduct was that of the applicant, not the deceased.  In any event, the applicant provided an explanation for her conduct that is plausible and consistent with the deceased maintaining Australia as his domicile of choice,[25] namely, because it would be easier to have the deceased’s ashes returned to China. 

   [25] Applicant’s second affidavit paragraph [35]; Applicant’s third affidavit paragraph [9].

3. The respondent points to the purchase by the deceased of a house in Zhuhai.  Hongbin said this purchase was made by the deceased because of the nice environment, low air pollution and low population density in Zhuhai which made it an attractive place for the deceased to resettle.  However, those were the very factors that persuaded the deceased to move to Australia.  As the applicant explained, the Zhuhai property was purchased to enable Daniel and Shirley to attend an English language kindergarten in preparation for the move to Australia.  I accept her evidence. 

4. It is for these reasons that I find the deceased’s domicile at the date of his death was South Australia. 

   Loss of Chinese citizenship

5. An additional factor in this matter is that, as a matter of Chinese law, the deceased’s status as a Chinese citizen was automatically terminated once he was settled in Australia and acquired Australian citizenship.   

6. The Court heard from two experts in Chinese law, Associate Professor Andrew Godwin and Dr Sanzhuan Guo. The Court admitted reports prepared by each of them and heard them give concurrent evidence. The Court is empowered to receive evidence of Chinese law pursuant to s 63 of the Evidence Act 1929 (SA). Both Professor Godwin and Dr Guo boast impressive academic achievements in the field of Chinese law.

7. Chinese law does not recognise dual nationalities.  The 1980 Nationality Law of the PRC makes provision, inter alia, for the circumstances in which Chinese nationality may be lost, acquired and recovered.  There was disagreement between them as to the operation of the law in this area.  I prefer the evidence of Professor Godwin.  It was consistent with the text of the relevant provisions of the 1980 Nationality Law. 

8. Article 9 provides for the automatic loss of Chinese nationality where a Chinese national has settled abroad and acquired a foreign nationality of his or her own free will.  Article 10 sets out the conditions under which Chinese nationals may apply to renounce their Chinese nationality.  Article 11 provides that persons who apply to renounce their Chinese nationality lose Chinese nationality upon approval of their application.  Article 14 provides that persons who wish to acquire, lose or recover Chinese nationality, except as provided in Article 9, must go through certain prescribed application formalities.  The two requirements for automatic loss of Chinese nationality under Article 9 mean that a person who has acquired the citizenship of another country in accordance with their own free will does not necessarily lose their Chinese nationality if the “settled” test has not been met.  The standard of “settled” is unclear in practice.  As a matter of fact the Chinese government will frequently not have any way of knowing that a person’s Chinese nationality has been automatically lost in accordance with the operation of Article 9, but as a matter of strict legality if both conditions of Article 9 are met, no procedure needs to be undertaken to lose Chinese nationality as it will be lost automatically.

9. This analysis finds support in the evidence that the Chinese embassy in Tokyo refused to certify the deceased’s death certificate as he was no longer a Chinese citizen since he had acquired Australian citizenship, and the evidence that the Chinese Consul‑General in Adelaide cancelled the Chinese passports of the applicant and her children in March 2019 because they were Australian citizens.

10. The deceased automatically lost his Chinese nationality when Australian citizenship was conferred on 26 August 2016.  On the evidence by that time he had settled in Australia.

11. That the deceased was no longer a Chinese citizen after 26 August 2016 reinforces the finding that his domicile at the date of death was Australia.

    Critical findings of fact

12. For these reasons I make the following findings:

    1.the deceased and his family left China and moved to Australia in February 2012 with the intention of residing here indefinitely;

    2.the intention of the deceased and his family, namely to reside in Australia indefinitely, did not change when the deceased and his family were granted permanent residency in Australia on 22 July 2013;

    3.the intention of the deceased and his family, namely to reside in Australia indefinitely, did not change when the deceased and his family were granted Australian citizenship on 26 August 2016;

    4.the deceased automatically lost Chinese citizenship on 26 August 2016 when he was granted Australian citizenship;

    5.at the date of his death on 9 November 2018, the deceased had not made any arrangements to return to China permanently in the near future, or at all;

    6.at the date of his death on 9 November 2018 the deceased’s place of residence was South Australia; and

    7.the deceased and his family had chosen Australia as their domicile of choice from at least 2013, and were domiciled in Australia at the time of the deceased’s death on 9 November 2018.

13. Accordingly, I determine that the deceased’s domicile at the date of death was Australia, and in particular, South Australia.  At the time of his death the deceased’s place of residence was Australia and he intended to reside here indefinitely.

14. It follows that succession of the moveable assets of the deceased’s estate is determined by the law of South Australia.  However, if I am wrong in this conclusion, I should consider the position if the deceased’s domicile at the date of his death was China.  Chinese law provides its own choice of law rules. 

15. In the circumstances I am asked to determine the law of the PRC in respect of the moveable assets of an intestate estate. 

    Renvoi

16. The doctrine of renvoi requires a court of one jurisdiction to apply the law of a foreign country to the resolution of a legal dispute in that court’s jurisdiction.  While there is some argument as to the precise scope of the doctrine of renvoi in Australian law,[26] there is no doubt that it applies to the intestate succession of moveables.[27]   On the other hand, Chinese law does not recognise renvoi.[28]If the deceased’s domicile at death was China, this Court applies the Chinese choice of law rule and does not consider whether that system of law would apply the Australian choice of law rule. 

    [26] Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331.

    [27] Re Ross; Simmonds v Simmonds (1917) 17 SR (NSW) 419.

    [28] Article 9, Law of the People’s Republic of China on Application of Laws to Foreign and Related Civil Relations 2010.

17. The applicant contends that the relevant Chinese law is Article 31 of the Foreign Relations Civil Law as interpreted under Article 15 of the 2012 Interpretation Law.  That imposes a test of habitual residence in determining the choice of law rule applicable to intestate succession.  If the habitual residence is unclear then the test is current residence.  The applicant contends that even under the application of the habitual residence test the deceased’s habitual residence at the time of his death was South Australia.  In the event that the Court concludes that the habitual residence is unclear then it should conclude that his current residence at the date of his death also was South Australia.  Accordingly, even if the Court rejected the applicant’s primary submission that the deceased was domiciled in Australia, nonetheless, in applying Chinese law, his estate should be distributed in accordance with the law of South Australia. 

    Chinese law and habitual residence

18. The Court also heard from Professor Godwin and Dr Guo on the relevant Chinese law governing foreign‑related statutory succession in China.  There was a great deal of common ground.  Both of them attempted to narrow the area of disagreement as to the correct Chinese law that applies in the event that the Court finds that the deceased’s domicile was the PRC.  There was considerable agreement between them but they disagreed on some important aspects of Chinese law.  The Court was greatly assisted by their evidence in making findings of fact as to the relevant Chinese law. 

19. It was common ground between the experts that the Chinese legal system consists of four sources of law in a hierarchy which has at its apex the Constitution, and under which sits, in order of prevalence, the Basic Law passed by the National People’s Congress, laws passed by the Standing Committee of the National People’s Congress and, at its base, other legislative instruments, including administrative regulations passed by the State Council or local laws passed by relevant provincial People’s Congresses.

20. Judicial interpretations do not create any law but are issued by the highest judicial organ in China for the purpose of providing guiding and binding principles to each level of courts as to how to apply relevant laws.

21. Relevantly, I have considered the provisions of the 1985 Succession Law (1985 law) which is a Basic Law passed by the National People’s Congress.  In particular, I have considered Articles 10, 26 and 36.  I have also considered the general principles of the Civil Law of the PRC of 1986 (1986 Civil law) and in particular Article 15.  This also is a Basic Law passed by the National People’s Congress.  I have also considered the general provisions of the Civil Law of the PRC 2017 and in particular Article 25.  This is also a Basic Law passed by the National People’s Congress.  I have also considered the 2010 Law on Application of Laws to Foreign and Related Civil Relations, and in particular, Articles 2, 20, 31 and 51.  These are all laws passed by the Standing Committee of the National People’s Congress.  Finally, I have considered the 1988 Interpretation, particularly Articles 9 and 183 and the 2012 Interpretation, in particular Article 15.

22. To the extent there are differences in the opinions of Professor Godwin and Dr Guo, I prefer the views of Professor Godwin.  I found his evidence reasoned and logical.  His opinion provides an exhaustive, coherent and comprehensive interpretation of the Chinese law applicable to foreign intestacy matters. 

23. Dr Guo considers that if a deceased person’s domicile is uncertain the court shall fix his or her domicile by reference to the place of domicile with the closest connection with the civil relationship in dispute.  Dr Guo’s opinion relies upon the provisions of Article 36 of the 1985 Law, Articles 9 and 183 of the 1988 Interpretation and Article 2 of the 2010 Law.  Article 36 provides:

    For inheritance by a Chinese citizen of an estate outside the People’s Republic of China or of an estate of a foreigner within the People’s Republic of China, the law of the place of domicile of the decedent shall apply in the case of moveable property; in the case of immoveable property, the law of the place where the property is located shall apply. 

    For inheritance by a foreigner of an estate within the People’s Republic of China or of an estate of a Chinese citizen outside the People’s Republic of China, the law of the place of domicile of the deceased person shall apply in the case of moveable property; in the case of immoveable property, the law of the place where the property is located shall apply.

    Where treaties or agreements exist between the People’s Republic of China and foreign countries, [inheritance] shall be handled in accordance with such treaties or agreements. 

24. In this context Article 2 of the 2010 Law provides:

    Laws applicable to foreign-related civil relations shall be determined in accordance with this Law.  Provisions on the application of laws to foreign-related civil relations otherwise prescribed in other laws shall prevail. 

    In the absence of provisions on the application of laws to foreign-related civil relations as prescribed in this Law and other laws, laws having the most significant relationship with the foreign-related civil relation in question shall apply. 

25. Article 9 provides:

    The place where a citizen has last lived consecutively for over one year after leaving the domicile is the habitual residence, excluding the case where the citizen lives in a hospital for medical treatment. 

    Before a citizen moves to another place after moving out of the place where his residence is registered and has no habitual residence, the place where his residence is registered shall still be domicile. 

26. Article 183 provides:

    If a party’s domicile is unclear or cannot be determined, the party’s habitual residence shall be the domicile.  If a party has several domiciles, the place of domicile that has closest connection with the civil relationship in dispute shall be his or her domicile. 

27. But Professor Godwin is of the opinion that Articles 9 and 183 of the 1988 Interpretation have been superseded by Article 25 of the 2017 Civil Law, Articles 20 and 31 of the 2010 Law and Article 15 of the 2012 Interpretation. 

28. Both Professor Godwin and Dr Guo agreed that under Chinese law the choice of law rule for intestate succession is Article 31 of the 2010 Law as interpreted by Article 15 of the 2012 Interpretation.  Article 31 of the 2010 Law is the starting point.  It provides:

    Statutory succession shall be governed by laws of the habitual residence of the deceased person at the time of death, provided that statutory succession to real property shall be governed by the lex situs of the properties. 

29. Article 15 of the 2012 Interpretation provides:

    For a place where a natural person has continuously resided for one year or more as his or her life centre at the time of the occurrence, change or termination of any foreign-related civil relationship, the people’s court may determine such place as the habitual residence as prescribed in the Law of the PRC on the Law Applicable to Foreign-Related Civil Relationships, except medical treatment, labour dispatch, official duty and other similar circumstances. 

30. The relevant test is habitual residence.  Article 25 of the 2017 Civil Law applies to the determination of domicile and habitual residence.  It provides:

    The domicile of a natural person shall be his or her residence recorded in the household registration or any other valid identity of registration; but if his or her habitual residence is different from the domicile, the habitual residence shall be deemed to be his or her domicile. 

31. Professor Godwin also relies upon the provisions of Article 20 of the 2010 Law which provides:

    In the event that the laws of the habitual residence apply in accordance with this Law and a natural person’s habitual residence is uncertain, the laws of his current residence shall apply. 

32. “Current residence” is not defined. 

33. I accept Professor Godwin’s evidence that those provisions establish a coherent and exhaustive code governing this area of Chinese law.  While the 1988 interpretation was issued in respect of the General Principles of Civil Law of 1986, there are inconsistencies between the 1988 Interpretation and those provisions of the 2017 Civil Code, the 2010 Law and the 2012 Interpretation set out above.  Further pursuant to Article 51 of the 2010 Law, the 2010 Law prevails over any inconsistency with Article 36 of the 1985 Law.[29] 

    [29]     Article 51 of the 2010 Law provides:

    If the provisions in Article 146 and Article 147 of the General Principles of the Civil Law of the People’s Republic of China and Article 36 of the Law of Succession of the People’s Republic of China do not conform with the provisions in this Law, the provisions in this law shall prevail.

34. Dr Guo’s opinion relies upon the application of Article 183 of the 1988 Interpretation which applies a test of closest connection to determine domicile or habitual residence.  This approach to the construction of Chinese law is inconsistent with one of the principles of Chinese law that laws promulgated later in time should prevail over earlier laws.[30]  While the 1988 Interpretation relates to a Basic Law, nonetheless the 2010 Law on application of laws to foreign and related civil relations effected a comprehensive and coherent conflict of laws system for succession which include conflict rules for intestate succession, testate succession, succession of vacant estates and the administration of estates.  I consider Dr Guo’s reliance on Article 2 of the 2010 Law is misplaced.  The effect of Article 2 is that the 2010 Law applies to determine the application of laws concerning foreign-related civil relations except to the extent that there are other laws that otherwise contain special provisions.  As I have noted above, both Professor Godwin and Dr Guo agree that the choice of law rule for intestate succession is Article 31 of the 2010 Law as interpreted by Article 15 of the 2012 Interpretation.  Because Articles 9 and 183 have been superseded there are no other laws that otherwise contain special provisions in the area of intestacy.  Chinese law now prescribes an exhaustive code in this area. 

    [30] Article 92, 2000 Law. 

35. This is to be compared with the previous situation in Chinese law where there were only sporadic and inconsistent conflict rules respecting succession.  Dr Guo was unable to explain convincingly why a test for domicile would be applied when the law in China required the determination of habitual residence rather than domicile in respect of foreign intestacy matters. 

36. Article 31 provides that statutory succession shall be governed by the laws of the habitual residence of the deceased person at the time of death subject to a specific exception for the statutory succession to real property.  Pursuant to Article 20 of the 2010 Law where the laws of habitual residence apply but the habitual residence of the person is unclear, the laws of his current residence shall apply.  The issue of current residence is to be determined on the basis of the place where the deceased was considered to be currently residing at the time of death after excluding any trips for “medical treatment, labour dispatch, official duty and other similar circumstances”. 

37. I accept Professor Godwin’s opinion that the domicile test under Article 36 of the 1985 Law of Succession is to be disregarded in respect of foreign and related statutory succession, as Article 31 of the 2010 Law has adopted the “habitual residence” test.  This is consistent with the terms of Article 51 of the 2010 Law.  For similar reasons the “closest connection” test is inapplicable as the “habitual residence test” in Article 31 of the 2010 Law has replaced the concept of domicile in Article 36 of the 1985 Law of Succession.  Article 15 of the 2012 Interpretation provides Chinese courts with a different test for determining habitual residence. 

1. I accept that under Chinese law a natural person must have a domicile and may have more than one domicile.  On the other hand, it is possible that a natural person in China may not have an habitual residence or may not have a clear habitual residence.

2. Pursuant to Article 25 of the General Provisions of the Civil Law of the PRC of 2017 if a person’s habitual residence is different from the person’s domicile, the habitual residence shall be deemed to be his or her domicile. 

3. Article 15 of the 2012 Interpretation defines habitual residence to mean the place a person has continuously lived for one year or more.  However, this one year test does not mean one continuous unbroken year.  Clearly there are exceptions to the one-year test, namely, medical treatment, labour dispatch, official duty and other similar circumstances.  Both experts considered whether the phrase “other similar circumstances” accurately reflects the translation of Article 15 from Chinese to English.  In the end, I understood Professor Godwin and Dr Guo agreed that while the Chinese phrase that has been translated as “other similar circumstances” could be translated as “et cetera”, in this context both expressions would convey the same meaning, namely, other circumstances similar to the three identified categories that precedes that phrase in Article 15.  There was also discussion as to the meaning of the phrases “labour dispatch” and “official duty” as expanded by the phrase “other similar circumstances”.  I find that the expression “labour dispatch” whether considered with or without reference to the phrase “official duty”, but with its meaning expanded by the operation of the phrase “other similar circumstances”, extends to a period of time where a person undertakes employment or business activities away from the relevant place, for the purposes of applying the test in Article 15.  Accordingly, where such activities occur in the 12 months preceding the death of the deceased, the 12-month period prescribed by Article 15 will be extended to accommodate those exceptions.

4. While the 1988 Interpretation remains formally valid, it has been superseded by the code established by the relevant provisions of the 2010 Law, the 2012 Interpretation and the 2017 Civil Code in respect of foreign and related civil relations.  The tension between the competing principles of statutory interpretation that later law should prevail over earlier law and higher law should prevail over lower law is resolved in this case by applying the former rather than the latter principle for the reasons set out above. 

5. I am satisfied that the evidence establishes that at the date of his death the deceased’s habitual residence for the purposes of Chinese law was Australia, in particular South Australia.  The deceased was living in South Australia continuously for more than one year at the date of his death.  The evidence establishes that in the last year of his life he spent 227 days in Australia.  In the preceding year he spent 204 days in Australia.  On each occasion he left Australia to travel, except for the final trip to Japan, he returned to Australia.  I find he did so because Australia was his place of residence.  That is where he lived continuously since 2012, and in particular for the year preceding his death.  Despite his travel he did not live anywhere else.  I am unable to make a finding as to how much of this travel falls within the exception in Article 15 of the 2012 Interpretation.  However, the evidence is that overwhelmingly this travel was to China or Hong Kong.  I am satisfied some of this travel was for business purposes and, accordingly falls within the exception.  I am not able to find precisely how much was for business purposes but I accept that most of it was for family or social reasons.  For these reasons I am satisfied that his home in St Peters was his habitual residence for the year preceding his death, whether the test of habitual residence is confined to the 12 calendar months immediately preceding the date of death or whether it is the test identified by Professor Godwin which allows exceptions to the 12 month test so as to extend it for specified purposes.  His life’s centre was Australia. 

6. If I am wrong in finding that the deceased’s habitual residence was Australia I nonetheless find on the evidence that, at the date of his death, his current residence was Australia.  As a result, as a matter of Chinese law, the deceased’s moveable estate should be distributed in accordance with the law of South Australia.

   Anti-suit injunction

7. The applicant seeks a permanent anti‑suit injunction restraining the respondent from continuing to prosecute the PRC 1 proceedings in China. 

8. The respondent opposes the Court granting the anti‑suit injunction.

9. She opposes the grant of injunction because of the delay in bringing the application; the progress of the Chinese proceedings; the ambit of the injunction of the Chinese proceedings; the intersection of PRC 2, PRC 3 and PRC 4 with PRC 1; the Chinese law on inheritance, intestacy and domicile; the principles of comity, consistency of outcomes, the prejudice to the respondent if she cannot advance her inheritance claim in China; and the attitude of the Chinese courts to an Australian judgment. 

10. In the exercise of the Court’s jurisdiction in respect of the administration of deceased estates the Court has power to issue an injunction in personam against a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets.[31] 

    [31] Societe Nationale Industrielle Aerospatiale v Lee Kui Jak (1987) 1 AC 871 at 892-893.

11. As a matter of the administration of the estate, the title to the moveable assets outside South Australia do not automatically vest in the applicant by virtue of her appointment as administrator.  This is a matter determined by the lex situs of the moveables.[32]  However, the applicant as administrator may take steps to obtain possession of the moveables in a foreign jurisdiction.[33]  This Court has an in personam jurisdiction in respect of the administration of the assets of a deceased estate, wherever situated.  This arises from the trusts established by the grant of letters of administration.[34] 

    [32] Weinstock v Sarnat [2005] NSWSC 744 at [23].

    [33] Weinstock v Sarnat [2005] NSWSC 744 at [24].

    [34] Weinstock v Sarnat [2005] NSWSC 744 at [24]-[25], citing Stirling-Maxwell v Cartwright (1879) 11 Ch D 522; Ewing v Orr-Ewing (1883) 9 App CAS 34 at 40.  See the discussion in Collins (ed) Dicey, Morris and Collins on the Conflict of Laws, 15^th ed. 2012, r 142 which cites Winestock with approval. 

12. The nature of an anti-suit injunction was considered by the High Court in CSR Ltd v Cigna Australia.[35]The High Court considered there are various categories of anti-suit injunction but those categories are not closed.  Citing with approval the judgment of the Privy Council in Societe Nationale Industrielle Aerospatiale v Lee Kui Jak[36] the High Court recognised a category of anti-suit injunction where an estate is being administered in one country and an injunction is sought in that country to restrain a person from seeking by foreign proceedings to obtain the sole benefit of certain foreign assets of the estate.[37]  This is an aspect of the Court’s inherent jurisdiction.  The purpose of the injunction is to protect the jurisdiction of the Court.[38]  Such injunctions have been granted in Bunbury v Bunbury[39] and Hope v Carnegie,[40] and were considered in Al-Bassam v Al-Bassam[41] and Weinstock v Sarnat.[42] 

    [35] (1997) 189 CLR 345.

    [36] (1987) 1 AC 871.

    [37] CSR Ltd v Cigna Australia (1997) 189 CLR 345 at 391.

    [38] Weinstock v Sarnat [2005] NSWSC 744 at [33].

    [39] (1839) 1 Beav 318; 48 ER 963.

    [40] (1866) 1 Ch App 320.

    [41] [2004] EWCA Civ 857.

    [42] [2005] NSWSC 744.

13. In CSR v Cigna Australia,[43] the plurality provided guidance as to when the inherent jurisdiction would be exercised as follows:[44]

    The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other species of that power, it is not to be restricted to defined and closed categories. Rather it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court’s own proceedings or processes.

    [43] (1997) 189 CLR 345.

    [44] (1997) 189 CLR 345 at 392.

14. In Weinstock v Sarnat White J considered Hope and Bunbury as follows:[45]

    In Hope v Carnegie …, a decree had been made in England for the administration of the estate of a testator who died domiciled in England, but leaving property both in England and in the Netherlands. One of the beneficiaries of the deceased’s estate sought declarations, inter alia, that the deceased’s real and personal property in the Netherlands was subject to the trusts of the will and sought to restrain proceedings brought in the Netherlands by one of the deceased’s daughters for the administration of the real and personal estate of the testator situated in the Netherlands. The plaintiff in the Netherlands had contended that the will was inoperative in the Netherlands. It was undisputed that if the testator was domiciled in England, his personal estate should be distributed according to English law. That was a sufficient ground for restraining any proceedings in the Netherlands in relation to the personal estate situated there. The Court of Appeal in Chancery held that although it would not have restrained the defendant from commencing proceedings in the Netherlands relating only to the real estate situated there, she should be restrained from proceeding in the Netherlands because those proceedings would inevitably interfere with the administration of the personal estate and the whole matter was better treated in the English Court. The application for an injunction was part of the proceeding for the administration of the deceased’s estate.

    A similar order had been made by Lord Langdale, MR, and affirmed by the Lord Chancellor, in Bunbury v Bunbury … as part of an administration suit. There a testator, being domiciled in England, died leaving real and personal estate in the colony of Demerara which had been a Dutch colony until its capture from the Dutch in 1796. Dutch law prevailed in Demerara during the period the testator, when married to his first wife, resided and acquired property there. He made a settlement in favour of his second wife which purported to deal with his property in Demerara and a will in favour of the children of his second marriage which purported to deal with that property. The children of his first marriage claimed to be entitled to a share of the deceased’s real and personal property under Dutch law which conferred upon his first wife a community in the property of her husband which, upon her death, devolved upon her children. The children of the second marriage brought a suit for the administration of the deceased’s estate. As part of that suit, they sought an injunction restraining the children of the first marriage from prosecuting their claims in Demerara. Lord Langdale M.R. granted the injunction sought, because on the taking of accounts in the administration suit, all questions between the parties would have to be resolved, including whether the children of the first marriage had a clear equitable, as well as legal, title to the property in Demerara which they claimed in the proceedings in that colony. They were restrained from proceeding in Demerara to obtain possession of their alleged share of the estate there.

    [45] [2005] NSWSC 744 at [27]-[28].

15. White J went on to consider the relevant factors that meant that an injunction should issue. These include the domicile of the deceased; that in addition to any foreign assets, there are relevant assets located in the jurisdiction; and the parties being resident in the jurisdiction.[46]

    [46] [2005] NSWSC 744 at [33], [36]. In Weinstock the foreign moveables had, in fact, been repatriated to New South Wales which provided an even stronger basis for the anti-suit injunction. 

16. In respect of the latter factor, the respondent has been in Australia since 15 January 2020[47] and is currently in Australia on a visitor’s visa granted on 21 April 2021 and valid until 7 December 2021.  The respondent gave evidence that she did not know for what visa she had applied four months prior in December 2020, or the basis upon which she remained in Australia.[48]  I find that the visa applied for in December 2020 was the subclass 600 visa (a 12-month tourist visa) granted on 21 April 2021.  I am not in a position to make any finding as to the respondent’s intention beyond the expiry of this visa but I accept that it is possible she may have an intention to seek to remain in Australia beyond that date. 

    [47] T 355.19-20.

    [48] T 405.28-407.31.

17. The respondent’s residence and her status in Australia is also relevant to the exercise of discretion. In Stichting Shell Pensioenfonds v Krys,[49] it was put in opposition to an anti-suit injunction in the equitable jurisdiction that such an injunction would not issue to prevent a “foreign litigant” from resorting to the courts of their own country.  It was held there was no such proposition and the fact that a foreign litigant was being asked to be restrained from jurisdiction in the courts of his or her own country, was not a bar to the granting of relief. Their Lordships stated:[50]

    In some of the older cases, the foreign residence of a claimant combined with the foreign location of the relevant assets, was treated ... as a reason for expecting an order of the English courts to be disregarded. In an age when assets and persons were less mobile, the English courts were realistic enough to appreciate that the mere existence as a matter of English law of personal jurisdiction, over a foreign resident, offered no assurance that the injunction would in practice be observed. In modern conditions with an increasingly unified global economy, the English courts have generally assumed that their injunctions will be obeyed by those who are subject to their personal jurisdiction, irrespective of their place of residence.

    [49] [2015] AC 616 at [33]-[42].

    [50] [2015] AC 616 at [37].

18. The grant of an anti‑suit injunction is a discretionary remedy which is to be exercised only where the administration of justice and the protection of the Courts own processes require the Court to order such a remedy.[51]

    [51] CSR v Cigna (1997) 189 CLR 345 at 392.

19. The injunction sought is an in personam remedy.  It does not affect the Chinese courts but the respondent personally.  Accordingly, a submission that the Chinese court will continue to hear PRC 1 if the injunction is granted is not a persuasive reason to decline the application for the injunction.  Presumably, the Chinese court will do so only if the respondent continues to prosecute PRC 1.  That is the point of the application for the injunction.

20. The respondent contends that the Court should refuse the application for an injunction because of the applicant’s delay in bringing the application. 

21. An anti‑suit injunction must be sought promptly before the final proceedings are too far advanced.[52]  The injunction application is restricted to the Chinese inheritance claim (PRC 1).

    [52] The ANGELIC GRACE [1995] 1 Lloyds Rep 87 at 96.

22. In Ecobank Transnational v Tanoh[53] Clarke LJ said:[54]

    Injunctive relief may be sought (a) before any foreign proceedings have begun; (b) once they have begun; (c) within a relative short time afterwards; (d) when the pleadings are complete; (e) thereafter but before the trial starts; (f) in the course of the trial; (g) after judgment.  The fact that at some stage the foreign court has ruled in favour of its own jurisdiction is not per se a bar to an anti‑suit injunction…  But, as each stage is reached more will have been wasted by the abandonment of proceedings which compliance with an anti‑suit injunction would bring about.  That being so, the longer an action continues without any attempt to restrain it the less likely a court is to grant an injunction and considerations of comity have greater force.

    [53] [2015] EWCA (Civ) 1309.

    [54] [2015] EWCA (Civ) 1309 at [133].

23. The Chinese proceedings were instituted before the application for the anti‑suit injunction was made.  PRC 1 was commenced on 3 April 2019.  However, the applicant commenced non‑contentious proceedings in South Australia by way of applying for a grant of letters of administration on 8 February 2019 before the Chinese proceedings were commenced.  The application for the anti‑suit injunction was commenced on 29 January 2020.  At that stage there had not been a substantive hearing of PRC 1.  That remains the position. 

24. In the intervening period the applicant had applied to transfer PRC 1 to the Economic and Technological Development Zone Court in July 2019.  The respondent instituted proceedings in South Australia in August 2019 pursuant to the Inheritance (Family Provision) Act 1972 (SA).

25. In my opinion, there has not been unreasonable or undue delay by the applicant.  PRC 1 has not been heard.  It will not be heard until the outcome of the appeal in PRC 2 is known.

26. In the circumstances, I am satisfied that the application has been made sufficiently promptly given that what is sought to be restrained is the respondent prosecuting PRC 1. 

27. That the terms of the injunction sought only restrains the respondent from prosecuting the proceedings in PRC 1 is an important aspect in deciding whether to grant the application.  As I have noted, the trial of PRC 1 in China has not commenced hearing and will not do so until the Chinese court decides the appeal in PRC 2. 

28. The application for an injunction does not trespass on the other Chinese proceedings.  There is nothing about PRC 2, PRC 3 or PRC 4 which have been heard and determined and are now subject to an appeal, that would be affected by an injunction in respect of PRC 1.

29. PRC 3 and PRC 4 have no real relationship to the administration of the estate.  The only relationship PRC 3 and PRC 4 have to the administration of the deceased’s assets is that, if successful, they may cause companies that are controlled by the deceased to pay the equivalent of damages at common law which may diminish their value.  The grant of an injunction in relation to PRC 1 will have no effect on those claims.  While there has been a decision by the Chinese court in PRC 2 that revokes the inheritance agreement between the applicant and the respondent, that is subject to appeal.  It may be an injunction in respect of PRC 1 would render the appeal moot but that is not a reason to deny relief in respect of the respondent’s prosecution of PRC 1, although it may give rise to a question of the costs of that claim thrown away.  That can be left to another day.

30. The applicant seeks a prohibitory injunction.  If the respondent is unable to prosecute PRC 1, the Chinese estate will be administered by the applicant without the assistance or involvement of the Chinese court.  It is far from clear that the Chinese courts will not recognise the judgment of this Court.  The respondent invokes the evidence of the respondent’s Chinese lawyer, Jiang Haiou.  But he was not called as an expert in Chinese law unlike Professor Godwin and Dr Guo.  In any event, Mr Haiou’s evidence only went so far as to suggest that this Court could not make orders that would interfere with the proceedings of the Chinese court.  So much can be accepted.  This Court in exercising its jurisdiction to protect its own processes is asked to make orders restraining someone who has submitted to its jurisdiction from taking steps in another jurisdiction.  The in personam nature of the remedy underlines the legal reality that this Court is not interfering in the Chinese proceedings.  As Professor Godwin explained, any transfer in the ownership of the shares is to be undertaken in accordance with Article 75 of the Company Law of the PRC.[55]  The relevant registration authority would recognise notarised foreign legal documents, including a judgment of this Court as to domicile.[56]  If necessary, a Chinese court would recognise a determination by this Court as to the law to be applied to the distribution of the deceased’s movable estate in China.[57]  It is sufficiently clear that in China an estate can be administered without the assistance of the Chinese courts in determining rights and entitlements in a similar way to what occurs in this jurisdiction.  If this Court grants the application and makes orders restraining the respondent from continuing to prosecute PRC 1, it is at least possible the deceased’s estate will be administered in accordance with the ordinary principles of estate administration without necessarily involving the Chinese courts.

    [55] Exhibit A3 paragraphs 4.7-4.9.

    [56] Exhibit A3 paragraphs 4.10-4.11.

    [57] Exhibit A3 paragraphs 4.4-4.6.

1. I accept that the respondent will be prejudiced by having the assets of the deceased’s movable estate determined pursuant to the law of South Australia as that will deprive her of a beneficial entitlement she might enjoy under Chinese law, namely, to 25 per cent of the deceased’s estate.  That is a relevant consideration but it is outweighed by the applicant’s right to have the assets of the deceased’s movable estate determined in accordance with the proper law being the law of his domicile, namely South Australia. 

2. The respondent submits that the Chinese court is the most convenient forum for the determination of the distribution of the moveable assets of the deceased’s estate.  She submits that South Australia is not the appropriate forum because the majority of the assets are in China, the respondent is a Chinese citizen who usually resides in China and the Australian courts will not decide three out of the four proceedings before the Chinese courts.  In this case, as I have determined that the deceased’s domicile was Australia, not only is this Court not a clearly inappropriate forum, it is the only appropriate forum. 

3. In this case, the following factors, which White J in Weinstock held decisive in granting an application for an anti‑suit injunction, are present, namely, that the deceased was domiciled within the jurisdiction, the parties are currently resident in the jurisdiction or have submitted to the jurisdiction, and, in addition to any foreign assets, there are assets of the deceased’s estate within the jurisdiction. 

4. In the circumstances the weight of the relevant considerations favours the exercise of discretion to grant the injunction to protect the Court’s own processes in administering the assets of the estate by having the distribution of the moveable assets of the deceased’s estate decided in accordance with the law of his domicile, namely, South Australia.

5. For these reasons I would grant the injunction sought.

   Conclusion

6. I make a determination without administration pursuant to r 206 of the Supreme Court Civil Rules 2006 (SA) that the deceased, Hongtao Liu, who died intestate on 9 November 2018, and whose estate was subject to a grant of letters of administration by this Court on 8 February 2019, was domiciled in South Australia at the date of his death. 

7. It follows that the distribution of the deceased’s moveable estate is to be determined in accordance with the law of South Australia.

8. I would grant a permanent injunction that the respondent be restrained from taking any further steps to prosecute the proceedings designated as (2019) Ji 0391 Civil 2420 in the People’s Court of Qinhuangdao Economic and Technical Development Zone, Hebei, PRC, being the proceedings designated as (209) Ji 0302 Civil 5262 that were formerly in the Qinhuangdao Haigang District People’s Court, Hebei, PRC (PRC 1).

9. I direct that the applicant bring in to Court minutes of order reflecting these reasons. 

10. I will hear the parties as to costs.