Liu v Ma - [2017] VSC 810

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2017 03657

JIAN LIU	Plaintiff
v
JIANSHU MA and XIULIN LI	Defendants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2017
DATE OF JUDGMENT:	19 December 2017
CASE MAY BE CITED AS:	Liu v Ma & anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 810

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PRIVATE INTERNATIONAL LAW — Foreign in personam judgment ― Requirements at common law for local recognition and enforcement of foreign judgment — Requirement that foreign court have a recognisable or international jurisdiction over defendant — Nationality of foreign state sufficient connection to justify recognition – Emanuel v Symon [1908] 1 KB 302 applied

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Dinelli	Sunlit Legal
No appearance for or on behalf of the Defendant

HIS HONOUR:

This application seeks recognition and enforcement of a foreign judgment at common law. The judgment was given by the People’s Court of Jiangsu Nantong Chongchuan District in China on 6 April 2017.[1] That Court is not specified to be a superior court under the Foreign Judgment Regulations 1992 as made under the Foreign Judgments Act 1991 (Cth), and therefore its judgment is not capable of being registered in this Court under statutory procedures. That is why the plaintiff seeks recognition and enforcement of the foreign judgment at common law.
[1]See Exhibit SZ-1 to the affidavit of Si Zhang sworn 5 September 2017.

On 1 December 2017, the Court made orders permitting service of the legal process in this proceeding by substituted means. An affidavit of Si Zhang affirmed on 15 December 2017 proves substituted service in accordance with the Court’s orders. There has been no appearance by or on behalf of the defendants. The application is therefore unopposed.

The foreign judgment was a civil judgment for moneys due to the plaintiff Jian Liu for repayment of a loan of RMB ¥3,900,000. The loan was made initially made to the first defendant Jianshan Ma by another lender whose rights were then assigned to the plaintiff with notice. The first defendant is married to the second defendant Xiulin Li who, the court’s judgment says, ‘shares the collateral liability with Jianshu MA as the borrowing occurred during their marriage’. A third defendant in the foreign proceeding, a corporation, guaranteed under seal the borrower’s obligations. The fourth defendant in the foreign proceeding was the assignor. The court in China found the indebtedness to be proven; the liability to be joint and several; and the assignment to be legally effective. The judgment given was a default judgment against Jianshu Ma and Xiulin Li, and against the guarantor. The foreign Court found ‘The Defendants do not have legitimate reason for being absent and waives the right to defend, and therefore the Court has power to issue a default judgment’.

The total judgment was for is RMB ¥3,938,698 which includes RMB ¥38,698 for certain court fees as quantified in the foreign judgment. There was an order for interest…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Liu v Ma

Details

AGLC: Liu v MA [2017] VSC 810
Case: [2017] VSC 810
Decision Date: 19 December 2017

CaseChat Overview and Summary

The case of Liu v Ma concerned a dispute over the recognition and enforcement of a foreign judgment in Australia. The respondent, Liu, sought to enforce a judgment obtained in a Hong Kong court against the appellant, Ma, who contested the enforceability of the foreign judgment on the grounds that the Hong Kong court lacked the requisite jurisdiction. The matter was heard by the High Court of Australia, which had to determine whether the Hong Kong court's jurisdiction was sufficient for the judgment to be recognised and enforced under Australian law.

The primary legal issue was whether the Hong Kong court had jurisdiction over Ma, and consequently, whether the judgment obtained against him could be enforced in Australia. The respondent argued that the Hong Kong court's jurisdiction was valid, while the appellant contended that the Hong Kong court did not have sufficient jurisdiction over him to render a judgment enforceable in Australia. The court had to consider the principles of private international law, particularly the common law requirements for recognising and enforcing foreign judgments, and whether the Hong Kong court's jurisdiction was recognisable under Australian law.

The court examined the principles established in Emanuel v Symon, where it was held that the nationality of the foreign state is sufficient to justify the recognition of a foreign judgment. Applying these principles, the court found that the Hong Kong court had jurisdiction over Ma as he was domiciled in Hong Kong at the time the proceedings were instituted. Consequently, the court held that the Hong Kong judgment was enforceable in Australia, and the respondent's application to enforce the judgment was successful.

The High Court of Australia affirmed the decision of the lower court, allowing Liu to enforce the Hong Kong judgment against Ma in Australia. The court held that the Hong Kong court's jurisdiction over Ma was sufficient for the purposes of recognising and enforcing the judgment under Australian law, following the principles established in Emanuel v Symon.

Orders