Chen v Lin - [2014] NZHC 3210

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000665

CIV-2014-404-00942 [2014] NZHC 3210

BETWEEN
YANG CHEN

Applicant / Plaintiff

AND

JIN ZHU LIN Respondent / Defendant

Hearing:
4 December 2014

(on papers)

Appearances:

R Reed for Applicant/Plaintiff
A Kashyap for Respondent

Judgment:

15 December 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
15.12.14 at 12 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CHEN v LIN [2014] NZHC 3210 [15 December 2014]

[1] In this proceeding the plaintiff successfully sought summary judgment for an order entering judgment in this Court for the amount that a Court of competent jurisdiction in the Republic of China had issued judgment against the defendant. On
23 July 2014 I entered judgment in favour of the plaintiff, for, so far as relevant, the sum of RMB 20 million and also made an order under s 145A of the Land Transfer Act 1952. The latter order is not a matter that calls for any mention in this judgment.

[2] Subsequently, the plaintiff’s counsel applied for an order recalling or varying the earlier judgment. The basis for making that application was that the plaintiff considered that the judgment was incomplete to the extent that it did not reflect an amount of interest which the Chinese Court had ordered to be paid in addition to the sum of RMB 20 million. The original judgment of the Court directed:

(ii) The Defendants Chen Shuqin Lin Jinzhu, Lin Tingting and Lin Feiteng should refund the transfer amount RMB $20,000,000 and corresponding interest (to be calculated according to the overdue loan interest rate of the same kind in the same period of the People’s Bank of China based on RMB $20,000,000 from May 14, 2009 to the date of repayment confirmed by this judgment) to the Plaintiff Chen Yang within the scope of inheritance of Lin Qiming’s heritage in ten days since the effective date of this judgment.

[3] On the day of the hearing of the defended summary judgment application, the plaintiff produced a further affidavit of Chen Long, the brother of the plaintiff. Counsel for the plaintiff says that this affidavit was produced in Court and I accept her account that that occurred on 24 June 2014. Probably because of the late filing of the affidavit, the Court registry of documents was not updated to record it. I might add that the plaintiff was not on his own in late filing documents because there were also documents filed for the defendant on 23 June 2014.

[4] However, the fact was that the affidavit was overlooked.

[5] The affidavit of 24 June 2014 stated, so far as relevant:

5.In my affidavit dated 17 June 2014, I included as an annexure “G” a copy of the preliminary interest calculations by the Courts in China. I have now received a final sealed calculation from the Courts in China that the total amount owing is $28,567,202.23 RMB. A

translated…

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 [2014] NZHC 3210
Case: [2014] NZHC 3210
Decision Date: 15 December 2014

CaseChat Overview and Summary

Yang Chen sought summary judgment against Jin Zhu Lin in the High Court of New Zealand to enforce a Chinese Court judgment for RMB 20 million and interest. Chen argued that the New Zealand judgment was incomplete as it did not include interest calculated by the Chinese Court. Lin contended that the New Zealand Court should determine the applicable interest rate.

The Court noted that the Chinese Court judgment quantified the interest payable, making it a final and conclusive judgment at common law. While the New Zealand Court has discretion to fix the rate of interest under the Judicature Act 1908, there is no authority for reviewing foreign court interest rates. The Court concluded that it was too late to recall the judgment once it had been entered and perfected.

The Court found that the principles for recalling a judgment apply in limited circumstances, such as changes in law or failure to cite relevant decisions. However, the New Zealand Court could not recall the judgment to modify the amount payable, as the interest had already been quantified by the Chinese Court. Therefore, the application to recall the judgment was dismissed.

In summary, the Court held that the Chinese Court's determination of the interest payable was final and conclusive, and could not be revisited by the New Zealand Court. The application to recall the judgment and include additional interest was dismissed, despite the Court acknowledging that the result was unsatisfactory.

Orders