JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	3–7, 10–12, 17-19 September 2018, 11 October 2018
DATE OF JUDGMENT:	30 April 2019
CASE MAY BE CITED AS:	Xu v Wang
MEDIUM NEUTRAL CITATION:	[2019] VSC 269

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RECOGNITION OF FOREIGN JUDGMENT – Concurrent proceedings in Australia and the People’s Republic of China – Plaintiff obtained judgment in a court in the People’s Republic of China without notifying defendant or this Court – Whether plaintiff entitled to recognition of judgment obtained in secret – Whether defendant submitted to the foreign jurisdiction – Whether foreign judgment obtained by fraud – Whether defendant denied natural justice – Whether an abuse of process – Evidence Act 2008 (Vic) s 174 considered – Terrell v Terrell (1971) VR 155; Moore v Inglis (1976) 9 ALR 509; Stern v National Australia Bank; National Australia Bank v Pollack [1999] FCA 1421; Boele v Norsemeter Holdings AS [2002] NSWCA 363; Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491; Re AWB Ltd (No 10); Australian Securities and Investments Commission v Lindberg (2009) 76 ACSR 181; SK Foods LP v SK Foods Australia Pty Ltd (in liq) (No 3) (2013) 214 FCR 543; Marks v Australia and New Zealand Banking Group Ltd [2014] QCA 102; Doe v Howard [2015] VSC 75; Liu v Ma [2017] VSC 810; Re Tang (2017) 52 VR 786 referred to.

CHEQUES ACT 1986 (CTH) – Dishonoured cheque in purported repayment of loan – Loan monies advanced by contra agreement – Whether total or partial failure of consideration – Cheques Act 1986 (Cth) ss 35, 36, 71, 76 considered – Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 1 WLR 713; Mobil Oil Australia Ltd v Caulfield Tyre Service Pty Ltd [1984] VR 440 referred to.

BREACH OF CONTRACT – Personal loan from plaintiff to defendant – Loan monies advanced by contra agreement – Consideration – Whether total failure of consideration.

MISLEADING OR DECEPTIVE CONDUCT – Representations made to defendant about performance and profitability of business – Representations made to defendant about plaintiff’s involvement in business – Representations made to defendant about defendant’s involvement in business – Whether misleading or deceptive – Whether statements in the ordinary course of business – Whether statements of opinion – Whether statements as to future matters – Whether representations attributable to plaintiff – Whether representations caused defendant to invest in business – Competition and Consumer Act 2010 (Cth) Sch 2, ss 4, 18; Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8 considered – Parkdale Custom Built Furniture Pty Ltd (1982) 149 CLR 191; Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25; Yorke v Lucas (1985) 158 CLR 661; Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302; Argy…

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 Xu v Wang

Details

AGLC: Xu v Wang [2019] VSC 269
Case: [2019] VSC 269
Decision Date: 30 April 2019

CaseChat Overview and Summary

Xu initiated proceedings against Wang in the Federal Circuit and Family Court of Australia, seeking recognition and enforcement of a judgment obtained in a court in the People's Republic of China. The Chinese judgment was secured by Xu against Wang without notifying Wang or the Australian court. The dispute involves several legal issues, including the validity of the foreign judgment, whether Wang submitted to the foreign jurisdiction, whether Xu obtained the judgment by fraud, and if Wang was denied natural justice. Additionally, Xu is seeking damages for breach of contract and misleading or deceptive conduct under Australian law.

The court considered the statutory provisions under the Evidence Act 2008 (Vic) s 174, which provides that a court may not disregard a foreign judgment if the foreign court had jurisdiction and the judgment was final and conclusive. The court examined precedents such as Terrell v Terrell, Moore v Inglis, and Stern v National Australia Bank to determine if the foreign judgment should be recognised. The court also assessed if Wang had submitted to the jurisdiction of the Chinese court and whether Xu had obtained the judgment by fraud. Furthermore, the court scrutinised if Wang was denied natural justice and whether there had been an abuse of process. The court determined that the Chinese judgment could not be recognised due to the lack of notice to Wang and potential fraud in obtaining the judgment.

In addition to the foreign judgment issues, the court considered the contractual dispute between Xu and Wang. Xu claimed that Wang failed to repay a loan as per the terms of the contra agreement. The court examined whether there was a total or partial failure of consideration under the Cheques Act 1986 (Cth). The court also assessed if Xu's representations about the business performance and Wang's involvement in the business constituted misleading or deceptive conduct under the Competition and Consumer Act 2010 (Cth) Sch 2, ss 4, 18, and Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8. The court concluded that Wang was not liable for the loan repayment and that Xu's representations did not amount to misleading or deceptive conduct.

The court ordered that the application for recognition and enforcement of the Chinese judgment be dismissed. Additionally, Wang was found not liable for the repayment of the loan, and Xu's claims for misleading or deceptive conduct were dismissed. No orders for damages were made in favour of either party.

Orders