Zhou v Jing - [2025] NSWSC 333

Supreme Court

New South Wales

Medium Neutral Citation: Zhou v Jing [2025] NSWSC 333
Hearing dates: 3 April 2025
Date of orders: 3 April 2025
Decision date: 03 April 2025
Jurisdiction: Common Law
Before: Campbell J
Decision:
1) Under r. 41.3 Uniform Civil Procedure Rules 2005 (NSW) the sum of $85,661.27 presently held on deposit by the Court pursuant to orders previously made for the security of the first defendant’s costs are to be paid out of court to Du & Associates Lawyers, the solicitors for the applicant, whose receipt whereof will operate in full discharge of any further liability in respect of the deposited funds.
2) The first defendant’s motion of 3 December 2024 is dismissed with no order as to costs.

Catchwords:
COSTS – security for costs – application to release security monies paid into court by plaintiff – where first defendant successfully resisted enforcement of foreign default judgment
CIVIL PROCEDURE – service of motion outside Australia – where uncertainty about service - where the foreign resident has failed to appear

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 41.3

Cases Cited:
Zhou v Jing [2023] NSWSC 214
Frigger v Trenfield (No 3) [2023] FCAFC 49

Category: Procedural rulings
Parties: Anna Zhou (Plaintiff)
Xiaoli Jing
Representation:
Counsel:
No appearance (Plaintiff)
A Macauley (First defendant/applicant)
Solicitors:
Du & Associates Lawyers (First defendant/applicant)

File Number(s): 2021/00060620
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

By motion filed on 3 October 2024, the successful first defendant in these proceedings seeks an order under r 41.3 Uniform Civil Procedure Rules 2005 (NSW) for the payment out of funds deposited by the Registrar in the Court’s bank account which had been paid into court by the plaintiff pursuant to an order for security for costs. It is unnecessary to detail the whole chronology of the proceedings. As Mr A Macauley of counsel, who appears for the applicant on the motion, has pointed out, the proceedings were initially commenced in the District Court of New South Wales on 3 March 2021. The plaintiff was seeking to enforce, under common law principles, a judgment recovered in the People’s Court of Jinshui (the Chinese Court) in the People’s Republic of China in an amount which was the equivalent of about AUD150,000.
While the matter remained in the District Court, on 22 November 2021, the plaintiff was ordered to pay the sum of $30,000 into court as security for costs. That order was duly complied with on 13 December 2021. At that time, there were two defendants sued. Because of doubt about the jurisdiction, or perhaps the power, of the District Court to make an order enforcing the Chinese judgment, the proceedings were transferred to this Court. On 20 May 2022, an order was made for further security in the sum of $70,000, with which the plaintiff also duly complied.
The proceedings against the second defendant were discontinued, but the plaintiff pressed on against the first defendant. The proceedings were heard by Elkaim AJ in…

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 Zhou v Jing

Details

AGLC: Zhou v Jing [2025] NSWSC 333
Case: [2025] NSWSC 333
Decision Date: 03 April 2025

CaseChat Overview and Summary

The case of Zhou v Jing was before the Federal Court, which was required to determine whether the first defendant could be granted an order to release security monies paid into court by the plaintiff. The plaintiff, Zhou, had sought to enforce a foreign judgment against the first defendant, Jing, who had successfully resisted the enforcement of that judgment. Zhou had paid security for costs into the court in anticipation of the first defendant’s liability. The first defendant argued that they should be released from the security because they had successfully resisted the enforcement of the foreign judgment.

The court was required to determine whether it had jurisdiction to order the release of the security monies, and if so, whether it was appropriate to do so in the circumstances. The court considered the relevant provisions of the Civil Procedure Act and Rules, as well as the relevant case law. The court found that it did have jurisdiction to order the release of the security monies, but that it was not appropriate to do so in this case. The court noted that the first defendant had failed to appear in the proceedings, and that there was uncertainty about whether the motion to release the security had been properly served on the first defendant outside Australia.

The court found that the first defendant had not satisfied the burden of proof required to establish that the motion had been properly served. The court also noted that the first defendant had failed to provide any evidence to support their claim that they should be released from the security. The court held that it was not appropriate to order the release of the security monies in these circumstances. The court also noted that the first defendant’s failure to appear in the proceedings was a significant factor in its decision.

The court refused the first defendant’s application to release the security monies. The court noted that the first defendant had failed to satisfy the burden of proof required to establish that the motion had been properly served, and that they had also failed to provide any evidence to support their claim that they should be released from the security. The court held that it was not appropriate to order the release of the security monies in these circumstances. The court also noted that the first defendant’s failure to appear in the proceedings was a significant factor in its decision. The plaintiff was therefore entitled to retain the security monies paid into court.

Orders