Chen v Lin - [2015] NZHC 998

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000665 [2015] NZHC 998

BETWEEN
YANG CHEN

Applicant

AND

JIN ZHU LIN Respondent

Hearing: 1 May 2015

Appearances:

Mr R Hesketh for Plaintiff/Applicant
Mr Raju for Defendant/Respondent

Judgment:

12 May 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
12.05.15 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CHEN v LIN [2015] NZHC 998 [12 May 2015]

[1] This judgment concerns an interlocutory application for orders correcting an accidental slip which was filed in the High Court 6 March 2015. The judgment in question is that which I entered on 23 July 2014. That judgment materially provided as follows:

(a) The courts in China had jurisdiction to make the orders that it did establishing that the respondent/defendant indebted to the applicant/plaintiff in the sum of RMB 20 million.

(b) The applicant/plaintiff is entitled to enforce those judgments in New Zealand. On that basis I enter judgment for the applicant/plaintiff in the sum of RMB 20 million.

[2] The judgment, the applicant says, omitted to include an additional sum of

RMB 8,567,202.23. This later amount is said to be attributable to interest.

[3] Even though the plaintiff’s lawyers were aware of what they thought was a mistake in the judgment, they sealed it on the basis that they would thereafter pursue the issue of the RMB 8,567,202.23 interest. However, in a later judgment that I issued, following a further application that they made for recall of judgment, I declined the application because the power to recall a judgment pursuant to r 11.9 of the High Court Rules (which was the rule under which the application was made) was only exercisable up to the point where the judgment is drawn up and sealed. Because the judgment had been drawn up and sealed, I declined to recall it under r 11.9.

[4] It was against this background that the plaintiff/applicant made the latest application pursuant to r 11.10, which, as the heading to the rule makes clear, is concerned with “correction of accidental slip or omission”.

[5] The slip or omission in this case was said to arise from the fact that the Court, in entering judgment omitted to, through error or mistake, enter judgment for the interest component of the judgment which the Chinese Court entered against the defendant.

[6] I accept that the Chinese Court did award to the plaintiff the amount of interest. However, I regret that I do not agree that the rule which the applicant relies on provides me with jurisdiction to make the order sought. The cases that have been decided on the effect of r 11.10 make it clear that the rule was not available for the purpose of making a substantial variation to the original judgment. The Judge is not entitled to use the rule to issue what is substantially a different judgment from that which was originally pronounced. This principle is…

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 Chen v Lin

Details

AGLC: Chen v Lin [2015] NZHC 998
Case: [2015] NZHC 998
Decision Date: 12 May 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Yang Chen applied for an interlocutory order to correct an error in a judgment previously entered by the Court. The case, Chen v Lin, involved a dispute over the enforcement of a Chinese court judgment in New Zealand, which was entered in favour of Chen for a sum of RMB 20 million. Chen sought to correct the judgment to include an additional sum of RMB 8,567,202.23, attributed to interest that was omitted in the original judgment. The court was required to determine whether the error could be corrected under Rule 11.10 of the High Court Rules, which pertains to the correction of accidental slips or omissions.

The court examined whether the rule could be invoked to make a substantial variation to the original judgment, noting that previous cases had established that the rule does not permit the substantial alteration of a judgment. The court also considered the case of Hanmore v Ganley, which suggested that a judgment could be corrected for errors such as omitted interest, but concluded that the principles from the earlier cases remained applicable. The court found that the error in this case did not fall within the scope of Rule 11.10 because it sought to include a separate element of the Chinese court's judgment that was not part of the original judgment.

The High Court held that the application to amend the judgment was dismissed, as the rule did not confer jurisdiction to make the sought variation. The court's reasoning was based on the established authority that the rule is limited to correcting errors that reflect the substance of the original judgment, and not for including additional elements from a foreign judgment. The court reserved costs on this application for future determination.

Orders