Yin v Wu

Case [2023] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCI 2023 0028
KE YIN Applicant
v
DI WU Respondent

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JUDGES: KYROU, T FORREST & HARGRAVE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 2 May 2023 
DATE OF JUDGMENT: 1 June 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 130
JUDGMENT APPEALED FROM: [2022] VSC 729 (Tsalamandris J)

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FOREIGN JUDGMENTS – Respondent (plaintiff) obtained judgment from Chinese court against applicant (defendant) – Proceeding to enforce foreign judgment – Application for summary judgment – Summary judgment granted by associate justice – Appeal to Trial Division dismissed – Applicant (defendant) not personally served with process in Chinese court – Service apparently by public notice – No evidence of Chinese law authorising service by public notice – Onus of proof of foreign law in circumstances – Service by electronic means open on evidence but not attempted – Held: defence that applicant (defendant) was denied natural justice had a real prospect of success – Summary judgment for Australian dollar equivalent of Chinese judgment sum set aside – Boele v Norsemeter Holding AS [2002] NSWCA 363; Jeannot v Fuerst (1901) 25 TLR 424; Igra v Igra [1951] P 404; Terrell v Terrell [1971] VR 155; Xu v Wang (2019) 58 VR 536 considered.

SUMMARY JUDGMENT – Restitution claim – Money paid in Chinese currency by respondent (plaintiff) to bank account of applicant (defendant) for purpose of foreign currency exchange – No foreign currency paid – Partial repayment in Chinese currency – Associate justice found entitlement to summary judgment for balance on restitution claim – Appeal to Trial Division dismissed – Whether defence that applicant (defendant) had no access to his bank account because it had been frozen had a real prospect of success – Observations as to relationship between ss 63 and 64 of the Civil Procedure Act 2010 – Held: defence had no real prospect of success – Respondent (plaintiff) entitled to judgment on restitution claim – Spencer v Commonwealth (2010) 241 CLR 118; Trkulja v Google LLC (2018) 263 CLR 149; Hausman v Abigroup Contractors Pty Ltd (2009) 29 VR 213; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 considered.

EVIDENCE – Whether copy bank statements admissible as business records for purpose of summary judgment application – Copy bank statements obtained by Chinese court under enforcement process in that court – Copy statements appeared on face to be records of banking business – Held: copy bank statements admissible – Evidence Act 2008, s 69(1)(a); Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59 applied.

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Counsel
Applicant: Mr PG Cawthorn KC with Mr M Nguyen
Respondent: Mr D Smallbone

Solicitors
Applicant: Colin Biggers & Paisley
Respondent: Sunfield Chambers Solicitors & Associates

associate

TABLE OF CONTENTS

Factual narrative

(a) Supreme Court proceeding

(b) Wu’s affidavit material

(c) Yin’s affidavit material

Associate Justice’s reasons

Judge’s reasons (appeal to Trial Division)

Proposed grounds of appeal

Ground 1: should summary judgment have…

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AGLC
Yin v Wu [2023] VSCA 130
Case
[2023] VSCA 130
Decision Date

CaseChat Overview and Summary

In the matter of Yin v Wu, the respondent (plaintiff) sought to enforce a judgment obtained from a Chinese court against the applicant (defendant). The primary dispute centred on the validity and enforceability of the Chinese judgment in Australia, as well as the merits of a restitution claim. The case was initially heard by an associate justice who granted summary judgment in favour of the plaintiff on both the enforcement of the foreign judgment and the restitution claim. The applicant subsequently appealed the associate justice's decision to the Trial Division, which was dismissed.

The legal issues before the court included whether the Chinese judgment could be enforced in Australia, the validity of service of the Chinese court process on the applicant, and the availability of a defence to the restitution claim. The court also considered whether the copy bank statements obtained from the Chinese court were admissible as business records under the Evidence Act 2008. The primary question was whether the applicant's defence had a real prospect of success, particularly concerning the service of the Chinese court's process and the applicant's access to his bank account.

The court held that the applicant had not been personally served with the process in the Chinese court, and there was no evidence that Chinese law authorised service by public notice. Although service by electronic means was possible, it had not been attempted. Consequently, the applicant's defence that he was denied natural justice had a real prospect of success, leading the court to set aside the summary judgment for the Australian dollar equivalent of the Chinese judgment sum. Regarding the restitution claim, the court found that the applicant's defence that he had no access to his bank account because it had been frozen did not have a real prospect of success. The court held that the plaintiff was entitled to judgment on the restitution claim.

The court further held that the copy bank statements were admissible as business records under section 69(1)(a) of the Evidence Act 2008. The statements appeared to be records of banking business and were obtained by the Chinese court under its enforcement process. The court applied Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59 in reaching this decision.

The Trial Division dismissed the applicant's appeal and upheld the associate justice's decision on the restitution claim. The court found that the plaintiff was entitled to judgment on the balance of the restitution claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The associate justice described the issues in broad detail,[49] and then set out ss 61 and 63 of the Civil Procedure Act 2010 (‘CPA’), which are in the following terms:[49]AsJ Reasons, [1]–[5]. 61 Plaintiff may apply for summary judgment in proceedingA plaintiff in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a defendant’s defence or part of that defence has no real prospect of success....63 Summary judgment if no real prospect of success(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.(2)A court may give summary judgment in any civil proceeding under subsection (1)—(a) on the application of a plaintiff in a civil proceeding;(b) on the application of a defendant in a civil proceeding;(c)on the court’s own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding. The associate justice then set out the law relating to the test applicable in determining whether a defence has no real prospect of success by reference to this Court’s decision in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[50] in the following terms:Upon the present state of authority:(a)the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[51][50](2013) 42 VR 27; [2013] VSCA 158 (‘Lysaght’).[51]AsJ Reasons, [8], citing Lysaght (2013) 42 VR 27, 40 [35]; [2013] VSCA 158 (Warren CJ and Nettle JA, Neave JA agreeing at [36]). Next,[52] the associate justice referred to this Court’s decision in Hausman v Abigroup Contractors Pty Ltd,[53] where the Court stated:The defendant must satisfy the court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.None the less, the defendant is required to use reasonable diligence to put before the court, albeit in a summary form, all the evidence relied on in the defence. In that regard, it would generally be regarded as an injustice to the plaintiff to allow the defendant to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced. An affidavit filed by the defendant may contain a statement of fact based on information and belief.The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff’s claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.[54][52]AsJ Reasons, [9]. [53](2009) 29 VR 213; [2009] VSCA 288 (‘Hausman’). [54]Ibid 225–6 [63]–[65] (Weinberg and Bongiorno JJA, Williams AJA) (citations omitted).

Ratio Decidendi

Legal Principle Established

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