Zhengzhou Lvdu Real Estate Group Co Ltd v Shu (No 2)

[2025] NSWSC 405

Supreme Court

New South Wales

Medium Neutral Citation:

Zhengzhou Lvdu Real Estate Group Co Ltd v Shu (No 2) [2025] NSWSC 405

Hearing dates:

22 April 2025

Date of orders:

22 April 2025

Decision date:

29 April 2025

Jurisdiction:

Equity - Commercial List

Before:

Peden J

Decision:

At [76]

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside – Setting aside judgment entered in absence of party — UCPR r 36.16(2)(b) — Delay — Non-appearance — Where delay of nearly one year in bringing application and no good reason for delay — Whether bona fide defence on merits — Whether it would be contrary to public policy to enforce foreign judgment — Where foreign court does not recognise undue influence or Garcia unconscionability

Legislation Cited:

Conveyancing Act 1919 (NSW) s 37A

Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Cases Cited:

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Dai v Zhu [2013] NSWCA 412

Garcia v National Australia Bank Ltd (1998) 194 CLR 395

Israel Discount Bank of New York v Hadjipateras [1984] 1 WLR 137

LFDB v SM (No 3) [2017] FCA 80

Northey v Bega Valley Shire Council [2012] NSWCA 28

Pham v Gall (2020) 102 NSWLR 269

Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773

Stern v National Australia Bank [1999] FCA 1421

Taylor v Taylor (1979) 143 CLR 1

Thorne v Kennedy (2017) 263 CLR 85

Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239

Vagg v McPhee (No 2) [2013] NSWCA 126

Xu v Wang (2019) 58 VR 536

Intermediate People’s Court of Henan Province, People’s Republic of China in proceedings (2020) Yu 01 Min-Chu No 503

Zhengzhou Lvdu Real Estate Group Co Ltd v Shu [2024] NSWSC 58

Category:

Principal judgment

Parties:

Zhengzhou Lvdu Real Estate Group Co Ltd (Plaintiff)
Pujuan Shu (Defendant)

Representation:

Counsel:
WG Muddle SC and DJ Townsend (Plaintiff)
S Docker SC and J Rodgers (Defendant)

Solicitors:
JurisBridge Legal (Plaintiff)
Monaco Law (Defendant)

File Number(s):

2023/00299168

Publication restriction:

Nil

JUDGMENT

1. On 22 April 2025, two notices of motion brought by Ms Pujuan Shu were heard and dismissed. These are the reasons for their dismissal.

2. Ms Shu’s motions related to Nixon J’s judgment given on 6 February 2024, which enforced a Chinese judgment in Zhengzhou’s favour against Ms Shu: Zhengzhou Lvdu Real Estate Group Co Ltd v Shu [2024] NSWSC 58 (Judgment). This judgment assumes an understanding of the Judgment.

3. By motion filed on 22 January 2025, that is, about two weeks less than a year after the Judgment, Ms Shu moved the Court for an order under r 36.16(2)(b) Uniform Civil Procedure Rules 2005 (NSW) that the Judgment be set aside. That rule provides:

36.16 Further power to set aside or vary judgment or order

…

(2) The court may set aside or vary a judgment or order after it has been entered if—

…

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order …

4. The judicial exercise of the discretion under r 36.16(2) requires the Court to consider whether any useful purpose would be served by setting aside the Judgment, and how it came about that Ms Shu found herself bound by the Judgment which was regularly obtained: Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243 (Stevenson CJ, Davidson and Roper JJ agreeing). The central question is whether it is unjust to let the perfected order stand: Northey v Bega Valley Shire Council [2012] NSWCA 28 at [16] (Barrett JA). Exercise of the discretion requires a broad evaluative judgment, involving consideration of the strength of any defence, the adequacy of the explanation for the failure to defend the proceedings, and the length of, and reason for, any delay: Pham v Gall (2020) 102 NSWLR 269 (Pham) at [108]-[110] (Payne JA, Leeming and McCallum JJA agreeing).

5. For the reasons below, Ms Shu’s motion ought be dismissed because, decisively:

1. Zhengzhou complied fully with the Court’s directions and obtained the Judgment entirely regularly; and

2. With knowledge of the proceedings and that the matter was to be heard on 1 February 2024, and with lawyers briefed in the matter, Ms Shu gave instructions not to appear and defend the summons.

6. Additionally, there is a further subsidiary consideration which reinforces the conclusion that the application should be refused: Ms Shu has failed to convince the Court that she has a credible excuse for her delay in bringing the application.

7. It might be arguable that Ms Shu has a bona fide defence on the merits based on undue influence or the equitable doctrine of unconscionable conduct (recognised in Garcia v National Australia Bank Ltd (1998) 194 CLR 395; referred to as Garcia unconscionability) if the proceedings had been litigated applying Australian law. However, I am not persuaded that Ms Shu has a bona fide defence to Zhengzhou’s claim to enforce the Chinese judgment on the basis that the judgment was based on an agreement tainted by undue influence or unconscionability, such that its enforcement would be contrary to public policy.

8. Ms Shu’s second notice of motion sought to set aside three subpoenas issued by Zhengzhou. However, she conceded that if the Judgment were not set aside, then, save for one exception, the subpoenas ought not be set aside either. I dismiss that notice of motion, including for the reasons that follow.

Factual background

9. Ms Shu is a Chinese national, who cannot speak, read or write English. She was married to the late Mr Xi Peng Li. Together, they controlled various corporate entitles in China. Further, Mr Li was the majority shareholder of Henan Shengrun Real Estate Group Co Ltd (Hennan Shengrun) as to 51%. Ms Shu was the other 49% shareholder.

10. On 6 June 2019, Hennan Shengrun and Zhengzhou executed a Loan Agreement, under which Zhengzhou ultimately advanced CNY170,000,000 to Henan Shengrun, which promised to repay the loan plus interest within one year. Ms Shu signed the Loan Agreement as guarantor of Henan Shengrun’s obligations.

11. On 8 July 2020, Zhengzhou’s legal claim against Henan Shengrun and Ms Shu for breach of the Loan Agreement was heard in China.

12. On 4 September 2020, Zhengzhou obtained a judgment against Henan Shengrun and Ms Shu in the sum of CNY170,000,000 plus interest and costs: Intermediate People’s Court of Henan Province, People’s Republic of China in proceedings (2020) Yu 01 Min-Chu No 503.

13. From 2 November 2020, the first of many “Consumption Restriction Orders” were made against Ms Shu in various Chinese proceedings. Those orders prevent Ms Shu from travelling by air or high-speed train, inter alia. It was accepted that Ms Shu could not travel to Australia to give evidence while those orders operate.

14. On 15 April 2023, Mr Li died. Ms Shu did not give any evidence about what she inherited as a result of Mr Li’s death, including in relation to his shareholdings in the many business companies.

15. On 20 September 2023, Zhengzhou commenced these proceedings against Ms Shu, seeking to enforce the Chinese judgment against her in NSW.

16. On 28 September 2023, Ms Shu was served with the summons and supporting affidavit.

17. On 13 October 2023, Ms Shu was served with the commercial list statement, and was informed of the directions hearing scheduled for 17 November 2023. She signed a “receipt” for the documents.

18. In October 2023, Ms Shu asked her son, Mr Edward Li, to speak to lawyers to handle the proceedings. He engaged solicitors, Monaco Legal, to act for Ms Shu. Ms Shu’s senior counsel accepted that at all times, Ms Shu was giving her lawyers instructions through her son; it was not suggested that Mr Edward Li gave instructions on his own behalf.

19. In November 2023, Ms Shu’s former counsel advised her that the application to recognise the Chinese judgment was likely to be successful and that it would be recognised, but that the interest component may be excluded by the Court, as it was arguably penal in nature and therefore contrary to public policy. Ms Shu’s Chinese lawyers had given the same advice.

20. By 9 November 2023, Ms Shu had not entered an appearance, that being the date by which an appearance was required.

21. On 17 November 2023, Ms Shu did not appear at the second directions hearing, during which the matter was set down for hearing on 1 February 2024. On 27 November 2023, Ms Shu was informed of the February hearing date.

22. In December 2023, Ms Shu mortgaged her only Australian asset to Yarrum Creek Holdings Pty Ltd and transferred her share ownership in Yarrum to her son, Mr Edward Li.

23. On 12 January 2024, Ms Shu told Zhengzhou’s agent that she would be represented by lawyers on 1 February 2024 and invited Zhengzhou to pursue enforcement of the Chinese debt against her and her Australian assets in the proceedings.

24. At the hearing on 1 February 2024, Ms Shu did not appear. Ms Shu’s senior counsel accepted that it could be inferred that Ms Shu gave instructions not to appear or defend the proceedings.

25. Nixon J reserved his decision until 6 February 2024. Nixon J required Zhengzhou to provide Ms Shu with a copy of the Judgment and the transcript of the proceedings. Further, his Honour granted Ms Shu leave to file and serve a notice of motion seeking to set aside the orders pursuant to UCPR r 36.16(2)(b) by 22 February 2024. She did not file a motion within that timeframe.

26. Over the months following the Judgment, Zhengzhou sought to enforce the Judgment against Ms Shu.

27. On 22 August 2024, Zhengzhou issued a first bankruptcy notice.

28. On 28 November 2024, Ms Shu filed a notice of appearance in these proceedings.

29. In December 2024, Mr Edward Li gave information to Ms Shu’s new counsel that gave rise to her proposed defence in the proceedings. In January 2025, Ms Shu gave instructions to seek to set aside the Judgment.

30. On 22 January 2025, Ms Shu filed her notice of motion seeking to set aside the Judgment. She relied on evidence from her son, Mr Edward Li, and her solicitor, who gave information on their instructions and belief as to Ms Shu’s likely evidence, based on her unsworn affidavits. Her solicitor deposed that Ms Shu had a concern that swearing an affidavit in these proceedings may mean she was in breach of Chinese law. However, Ms Shu did not appear to have a concern that making unsworn affidavits fell into the same category. Nor did she make any attempt to comply with Chinese law to bring forward her evidence directly.

Ought the Judgment be set aside?

Enforcing a foreign judgment

31. The principles of common law recognition and enforcement of foreign judgments are well settled and operate as a form of res judicata in respect of the Chinese judgment. As identified by Nixon J in the Judgment at [20], a foreign judgment is prima facie capable of recognition and enforcement where the following four criteria are satisfied:

1. the foreign court exercised jurisdiction in the international sense;

2. the foreign judgment is final and conclusive;

3. there is identity of parties between the foreign judgment debtor and the defendant in the forum proceedings; and

4. the foreign judgment is for a fixed, liquidated sum.

32. Zhengzhou satisfied Nixon J that the criteria for recognition and enforcement were met. Therefore, the Chinese judgment was prima facie enforceable as a valid obligation. Nixon J was not presented with any argument by Ms Shu as to why it would offend public policy to enforce the Chinese judgment.

33. Public policy reasons might include that a foreign judgment was obtained by fraud, is a revenue judgment or penal in nature, and that the recognition and enforcement of the foreign judgment would be contrary to Australian public policy (such as because the judgment debtor was denied procedural fairness by the foreign court).

Setting aside a judgment made in the absence of a defendant

34. The power under r 36.16(2)(b) is, by its terms, discretionary, and the discretion is guided by consideration of:

1. the importance of finality of litigation, such that “controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ);

2. whether any useful purpose would be served by setting aside the Judgment; and

3. how Ms Shu came to be bound by the Judgment regularly obtained against her.

35. In order to set aside the Judgment, Ms Shu must satisfy the Court of the existence of:

1. a bona fide reasonably arguable defence on the merits open to her, should the Judgment be set aside and the matter be re-litigated; and

2. an adequate explanation why she failed to put that defence at the time of the hearing, from which the Judgment resulted; and

3. an adequate explanation for any delay in bringing the application to set aside or vary the Judgment.

36. I do not accept Ms Shu has established any of the above.

Bona fide reasonably arguable defence on the merits?

37. Ms Shu must demonstrate that, if the Judgment was set aside, she has an arguable case that there is a public policy reason why the Court ought to decline to recognise and enforce the Chinese judgment.

38. Ms Shu asserts that she has an arguable defence because:

1. She allegedly entered into the guarantee because of the undue influence and Garcia unconscionability of her late husband, and further, Zhengzhou had knowledge of her relationship to him and the fact that she was a volunteer, and she reposed trust and confidence in him; and

2. It would be contrary to public policy to enforce the Chinese judgment, where those equitable defences could have been made out in Australia, but were not available in China.

Does public policy arise?

39. The concept that enforcing a foreign judgment would be contrary to “public policy” is discussed in a limited number of authorities.

40. The situations where public policy can be relevantly engaged in the context of refusing to enforce a prima facie enforceable foreign judgment are limited; it is “very difficult” to do so: Xu v Wang (2019) 58 VR 536 at [90] (Cameron J). Only where the offence to public policy is of a high order, as in cases involving fundamental questions of moral and ethical policy, and fairness of procedure, will it impact on the enforceability of a foreign judgment: Stern v National Australia Bank [1999] FCA 1421 (Stern) at [143] (Tamberlin J). This presents an “undoubtedly high threshold”: LFDB v SM (No 3) [2017] FCA 80 at [102] (Griffiths J). In Stern, Tamberlin J refused to accept that a defence based on statutory misleading or deceptive conduct ought to be available to a defendant as a basis to resist the enforcement of a foreign judgment, even though the policy behind the legislation might be considered obvious.

41. I was not referred to any decision where a foreign judgment has not been enforced because of an allegation that a contract underlying the foreign judgment was tainted with undue influence or some equitable fraud.

42. Ms Shu placed most reliance on obiter of Stephenson LJ in Israel Discount Bank of New York v Hadjipateras [1984] 1 WLR 137 (Israel Discount Bank) at 142:

There is authority for holding that it would be contrary to public policy for our courts to enforce a judgment based on a transaction which may have been tainted by undue influence.

43. However, with respect, no authority referred to by Stephenson LJ concerned undue influence. Instead, the reasons why the judgments cited were not enforced was because they concerned variously restraint of trade, “contracts contrary to public policy”, contracts “contrary to the established policy of this country”, contracts that “violated a moral principle”, and contracts that were “invalid as obtained by duress and … contrary to natural justice”: Israel Discount Bank at 133.

44. In any event, Stephenson LJ’s statement is obiter. The Court of Appeal’s dispositive reason for not refusing to enforce the foreign judgment was that the defendant had deliberately chosen not to agitate a defence based on undue influence in the New York court, where such a defence was available.

45. I accept that Stephenson LJ’s statement has been referred to by Australian courts, but again, it has never been applied in determining the outcome of any case, to which I was referred.

46. Further, Israel Discount Bank could not have decided “public policy” for the purposes of Australian law. Ms Shu did not make any submissions as to the possible relevance of the difference between the law of undue influence and unconscionable conduct in England and Australia, when referencing Israel Discount Bank. For example, in England, undue influence is understood to involve “abuse of influence”: see eg Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773 at [17] (Lord Nicholls); contrast Thorne v Kennedy (2017) 263 CLR 85 at [30]-[34] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ). There is also a divergence between Garcia unconscionability and the English equitable doctrine of unconscionable bargains.

47. Further, it does not appear that any cases have considered the difference between a contract that is void because it is contrary to public policy (for example, because of a restraint of trade clause or where a contract was procured by fraud), and those that are voidable at the election of the innocent party, subject to any defences such as laches and affirmation (for example, where there is undue influence).

48. I note that the parties did not make any submissions as to why there might be a different outcome if the proceedings were litigated in NSW. There was no dispute that the parties were Chinese, that the contract was formed in China, and that the subject matter of the contract was Chinese and Chinese law applied to any contractual dispute. Further, there was no dispute that Chinese law would not recognise any of the equitable defences alleged by Ms Shu here, namely undue influence or Garcia unconscionability. However, if Chinese law were applied in proceedings brought in NSW to enforce the contract (being the proper law of the contract), then it is unclear how Ms Shu could have been entitled to rely on equitable defences not recognised by Chinese law in any event.

49. I reject Ms Shu’s submission that it would automatically offend public policy to enforce a foreign judgment, because the Chinese court, does not recognise the Australian equitable defences of undue influence or Garcia unconscionability.

Nature of defence?

50. I note that at the hearing of a motion such as this, it is not necessary for finalised evidence to support a defence, in order for a Court to find there is a bona fide defence on the merits: Dai v Zhu [2013] NSWCA 412 at [89]-[92] (Sackville AJA, Barrett and Leeming JJA agreeing).

51. However, Ms Shu’s evidence to support her assertion that she has arguable equitable defences was lacking in several ways and insufficiently persuasive:

1. Ms Shu did not bring forward any witness to substantiate her bare assertions of the control exerted by her late husband over her and the businesses. Merely because he was the controlling shareholder does not demonstrate undue influence. Ms Shu now appears to be the face of the businesses, as is evident from the fact that she has been reported attending many functions on behalf of the business, including giving public speeches. She does not give any reason why she did not bring forward evidence from any employee within the business or other witness to support any of her allegations. Her documentary evidence is limited to inconsistent company searches; it was troubling that Ms Shu’s senior counsel submitted that one of them must be “wrong”.

2. Further, there was no evidence as to why Ms Shu failed to swear or affirm any evidence. Instead, she relied upon her draft affidavits, which were introduced as hearsay evidence through her solicitor. There was no evidence that she was prohibited from swearing or affirming those affidavits that had been drafted with the assistance of Australian lawyers. If there was a concern that she would breach Chinese law by swearing affidavits for use as evidence in Australia, then the preparation of the draft affidavits may have already contravened Chinese law. Further, Ms Shu gave no evidence that she had attempted to give evidence legally through the available channels.

52. In contrast, there is evidence from various witnesses for Zhengzhou to the effect that Ms Shu was involved in business and negotiations for Henan Shengrun and attended meetings for those purposes. Ms Shu gave a bare denial of those matters, without any other evidence to support it. The totality of Ms Shu’s evidence does not indicate she has a strong defence in any event.

53. I do not accept that Ms Shu has demonstrated a strong defence based on undue influence or unconscionable conduct that could be seen as rising to a “high order” impinging on public policy.

Reasons for failure to defend at the hearing?

54. As noted above, Ms Shu delayed by almost one year after the Judgment before seeking to have it set aside. Her senior counsel conceded that at all times she was giving the same solicitors instructions, from the commencement of the proceedings, and including the decision not to defend the proceedings, and the later decision to file the notice of motion seeking to set aside the Judgment.

55. The highest the evidence rises to explain Ms Shu’s change of mind about defending or resisting the Judgment comes from her son, Mr Edward Li. His evidence was that he gave new information to Ms Shu’s lawyers in December 2024, which he did not consider relevant earlier when assisting his mother in the proceedings. However, neither Edward, nor Ms Shu explained what conversations they had with lawyers between November 2023 to February 2024, nor the detail of the advice received earlier that led to Ms Shu deciding not to defend the proceedings. Ms Shu’s previous counsel, briefed in November 2023 to advise on the proceedings and any available defence, was clearly alive to the possibility of a defence based on public policy. It was not suggested that Ms Shu’s former counsel or her continuing solicitors were delinquent in not considering the issues raised in the current application until December 2024. This was not a situation where Ms Shu failed to appear and defend through no fault of her own: cf Taylor v Taylor (1979) 143 CLR 1 at 16 (Mason J) and 22 (Aickin J).

56. I do not consider that Ms Shu has provided any satisfactory explanation for her non-appearance in the proceedings before Nixon J. Whether there is a sufficient explanation for non-appearance is an important factor going to the discretion under r 36.16(2)(b): see eg Pham at [149] (Payne JA, Leeming and McCallum JJA agreeing). In this case, Ms Shu was aware of the proceedings, had lawyers engaged, and made the deliberate choice not to appear at, nor defend, the proceedings.

57. I consider it was Ms Shu’s choice, with the benefit of legal advice, not to defend, and then she changed her mind a year later, based on different advice. She could have raised the proposed defences before the hearing in February 2024 and did not do so.

Sufficient reasons for delay in seeking to set aside the Judgment?

58. I do not accept Ms Shu has provided a satisfactory explanation for her egregious delay in bringing her current application.

59. As noted above, I consider Ms Shu changed her mind about defending the proceedings, when at all times she was ably represented and could have agitated any appropriate defence in February 2024.

60. It further also appears that Ms Shu now seeks to defend her delayed defence based on her ill health caused by her allegedly abusive relationship and her mental and physical state after her husband’s death. However, for the following reasons, I do not accept that she was unable to engage in business dealings between the end of 2023 and throughout 2024.

61. First, Ms Shu did not bring forward any cogent objective evidence about any ill health, for example, medical reports or evidence of others who allegedly cared for her during her ill health.

62. Secondly, the evidence on the business website and newspaper reports indicated that she was engaged in business activities and made multiple public appearances on behalf of the business throughout 2023 and 2024. The bald assertion that she was “forced” to carry out those public engagements for the business and that they often left her exhausted is also not supported by any objective evidence. She does not explain who “forced” her to work. It appears she was able to engage in business activities, including divesting herself of her interests in a company she owned with her son, Yarrum, after she became aware of the 1 February 2024 hearing date. This does not support a contention that she was unable to function at a sufficient level to engage in business and giving instructions and making decisions to defend.

63. Thirdly, other documentation also appears to demonstrate that during 2023 and 2024 Ms Shu was involved in other litigation in China with other business creditors.

64. Finally, during 2024, Zhengzhou has been seeking to enforce its judgment debt in Australia, including by way of bankruptcy proceedings. Only after those steps were well advanced has Ms Shu sought to set aside the Judgment in order to support her resistance of bankruptcy.

65. Again, it appears that Ms Shu made choices about the timing of her application to set aside the Judgment. I consider her delay excessive.

Conclusion

66. Exercising the broad evaluative discretion, for the reasons above, I consider Ms Shu has not demonstrated that it would be “unjust” to allow the Judgment to stand. Therefore, it is appropriate to dismiss Ms Shu’s motion to set aside the Judgment.

Motion to set aside subpoenas

67. On 15 December 2024, Ms Shu filed a notice of motion seeking to set aside Zhengzhou's subpoenas to:

1. Charles & Partners, issued on 29 November 2024 seeking various financial documents from 2020 onwards relating to the L & S Family Trust and Yarrum and records of payments by Yarrum to Ms Shu;

2. Pitcher Partners Advisors Pty Ltd, issued on 18 November 2024 seeking various financial documents from 2020 onwards relating to the L & S Family Trust and Yarrum and records of payments by Yarrum to Ms Shu; and

3. Commonwealth Bank of Australia, issued on 14 November 2024 seeking bank statements and records for the accounts held by Ms Shu since 4 September 2020.

68. Zhengzhou’s alleged forensic purposes for the subpoenas were to enforce the Judgment and provide a basis for applications, such as further freezing orders, garnishee orders and applications under s 37A Conveyancing Act 1919 (NSW).

69. During the hearing, Ms Shu accepted that the subpoenas to Charles & Partners and the Commonwealth Bank would not be set aside if the Judgment was not set aside. Therefore, it is not necessary to further consider the issue.

70. However, Ms Shu submitted that even if the Judgment was not set aside, that part of subpoena seeking historical records from Pitcher Partners ought be set aside, because historical records could not be relevant to the enforcement of the Judgment. I reject that submission.

71. I consider those documents have been demonstrated to be relevant in circumstances where existing documentation shows the movement of money from Yarrum to Ms Shu by way of the payment of directors’ loans, with no indication of where the money has gone. Further, without explanation, Ms Shu is in breach of a court order made on 27 May 2024 to produce various financial records for the purposes of an examination. Had that occurred, the subpoena may not have been necessary. I do not accept that the “just, quick and cheap” resolution of the issues in dispute would be advanced by requiring Zhengzhou to continue to seek documents from Ms Shu, when relevant documents have been produced by third parties.

Costs

72. The parties agreed that costs ought to follow the event. However, Zhengzhou sought its costs of both motions on an indemnity basis on the basis that Ms Shu could not argue “as a matter of principle” that the Judgment ought be set aside on the basis of public policy.

73. An order for indemnity costs may be made, inter alia, where an action “has been commenced or continued in circumstances where the moving party, properly advised, should have known that it had no chance of success”: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4] (Allsop P, Beazley and Campbell JJA agreeing). However, this basis for ordering indemnity costs generally applies where an action is “without substance”, “groundless”, “fanciful or hopeful” or “so weak as to be futile”: Vagg v McPhee (No 2) [2013] NSWCA 126 (Vagg) at [31] (Ward JA, as the President then was).

74. I do not consider that the present case rises that high. While there were no binding authorities supportive of the proposition that the Judgment ought be set aside, there were nevertheless obiter comments supportive of Ms Shu’s position. Her case is properly characterised as weak, rather than one so hopeless that no reasonable party should ever have commenced it. The mere weakness of a case is insufficient to justify an indemnity costs order: Vagg at [32].

75. Therefore, Ms Shu must pay Zhengzhou’s costs on the ordinary basis as agreed or assessed.

Orders

76. For the reasons above, the appropriate orders are:

1. The defendant’s notices of motion dated 15 December 2024 and 22 January 2025 are dismissed.

2. Grant general access to documents produced on subpoena by:

1. Charles & Partners;

2. Pitcher Partners Advisors Pty Ltd; and

3. Commonwealth Bank of Australia.

3. Defendant to pay the plaintiff’s costs of the motions referred to in Order (1) on the ordinary basis as agreed or assessed.

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Decision last updated: 29 April 2025