Zhou v Jing - [2023] NSWSC 214

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zhou v Jing [2023] NSWSC 214
Hearing dates: 6 March 2023 to 7 March 2023
Date of orders: 14 March 2023
Decision date: 14 March 2023
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
(1) Judgment for the first defendant.
(2) The plaintiff is to pay the first defendant’s costs of the proceedings.
(3) The parties have leave to apply for any alternate costs order.

Catchwords:
PRIVATE INTERNATIONAL LAW - foreign judgment – default judgment obtained in China – enforcement by common law principles – denial of procedural fairness arising from defective service and not being aware of the foreign litigation

Legislation Cited:
Certain Provisions of the Supreme People’s Court on the Service of Civil Litigation Documents by Way of Court Express (2004) Art 1(2)
Civil Procedure Law of the People’s Republic of China (Revised in 2017), Arts 85, 92, 200, 205
Foreign Judgements Act 1991 (Cth)

Cases Cited:
Adams v Cape Industries Plc [1990] CH 433
Bao v Qu; Tian (No 2) [2020] NSWSC 588
Boele v Norsemeter Holding AS [2002] NSWCA 363
Liu v Ma [2017] VSC 810
Shamma v Jawad [2022] EWHC 2897 (KB)
Xu v Wang [2019] VSC 269
Agbara v Shell Petroleum Development Co of Nigeria Ltd [2019] EWHC 3340 (QB)

Category: Principal judgment
Parties: Anna Zhou (Plaintiff)
Xiaoli Jing (Defendant)
Representation:
Counsel:
P Cutler (Plaintiff)
A Macauley (Defendant)
Solicitors:
Cathay Lawyers (Plaintiff)
Du & Associates Lawyers (Defendant)

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

JUDGMENT

On 23 May 2018, the plaintiff commenced proceedings against the first defendant in China in the Jinshui District People’s Court of China (‘the Chinese Court’).
In China, following the filing of proceedings, it is the Court that serves the relevant documents on the defendant. In this matter, service was performed by post, initially by service to the address on the first defendant’s national identity card and, when that was ineffective, again by post, to the address on the first defendant’s household registration (her “Hukou”).
The service was ineffective because the first defendant did not live at either address. She had taken permanent residency in Australia in 2014. By way of explanation, a Hukou address is supposed to be the place where a person “habitually resides” and is usually associated with ownership of a property (Ex A2, p 319).
The validity of the service was a significant issue in the case. It is not in dispute that the first defendant was never personally served with the documents and had no notice of the action until well after the court had entered judgment against her.
As the first defendant was not aware of the proceedings she did not respond to the suit. On 28 December 2018, judgment was entered for the plaintiff against the first defendant for the sum of ¥713,596 plus interest (Ex A1, p 248). Subject to exchange rate fluctuations this was about $150,000 plus interest.
The first defendant, not knowing of the judgment, did not pay the plaintiff the judgment…

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 [2023] NSWSC 214
Case: [2023] NSWSC 214
Decision Date: 14 March 2023

CaseChat Overview and Summary

The case of Zhou v Jing involved a dispute between the plaintiff, Mr Zhou, and the defendant, Ms Jing, over an alleged debt. The matter was heard in the Federal Court of Australia, where the plaintiff sought to enforce a foreign judgment obtained in China. The crux of the case revolved around the enforceability of the Chinese judgment in Australia under common law principles, considering the circumstances of how the judgment was obtained.

The primary legal issue before the court was whether the Chinese judgment could be enforced in Australia. Specifically, the court needed to determine if the judgment was validly obtained and whether it complied with principles of procedural fairness. The plaintiff argued that the judgment was valid, while the defendant contended that the judgment was obtained in default due to defective service and that she was unaware of the foreign litigation, thereby denying her procedural fairness.

In reaching its decision, the court examined the circumstances surrounding the service of process in China and the defendant's knowledge of the proceedings. The court held that the service of process was defective, and the defendant was not made aware of the proceedings in a manner that complied with procedural fairness. As a result, the court found that the judgment did not meet the requirements of procedural fairness and therefore could not be enforced in Australia. The court also noted that the principles of comity, which require respect for the judicial processes of other jurisdictions, were not engaged in a manner that would support enforcing the judgment.

Consequently, the court dismissed the plaintiff's application to enforce the Chinese judgment in Australia. The court's decision emphasised the importance of procedural fairness and the need for due process, even in the context of enforcing foreign judgments.

Orders