Eight Mile Investment Limited v Liu

[2025] NZHC 899

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-761

[2025] NZHC 899

BETWEEN

EIGHT MILE INVESTMENTS LIMITED

First Plaintiff

TAT BOR LEUNG
Second Plaintiff

AND

CHAOQIAN LIU

Defendant

Hearing:

On the papers

Counsel:

K Sun for the Plaintiffs

R E Harrison KC for the Defendant

Judgment:

14 April 2025

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 14 April 2025 at 1 pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel:

Capstone Law Limited, Auckland Heritage Law, Auckland

Dr Rodney Harrison, KC

EIGHT MILE INVESTMENTS LTD v LIU [2025] NZHC 899 [14 April 2025]

Introduction

[1]    On 14 March 2025, I granted the plaintiffs’ application for summary judgment against the defendant (the judgment),1 recognising a judgment of the Intermediate Peoples’ Court of Guangzhou City, Guangdong Province, China (the Guangzhou judgment). The defendant has applied for an order that the judgment be recalled on the grounds that a plainly relevant fact was not brought to the attention of the Court and/or that justice requires the judgment be recalled.

Legal principles

[2]    Rule 11.9 of the High Court Rules 2016 provides that a judge may recall a judgment before it is sealed. The established grounds for recall are where:2

(a)since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; or

(b)counsel failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or

(c)for some other very special reason justice requires that the judgment be recalled.

[3]    The third ground is a narrow one and can include where the parties fail to draw to the Court’s attention a fact that was plainly relevant.3

[4]    Recall is appropriate where there are demonstrable material defects that speak for themselves. It is not an avenue for introducing new legal arguments after judgment,4 or to mount a collateral attack on a decision.5

1      Eight Mile Investments Ltd v Liu [2025] NZHC 526.

2      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3      Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23] and [32].

4      Cummins v Body Corporate 172108 [2022] NZCA 153 at [13].

5      Ideal Investments Ltd v Earthquake Commission [2023] NZCA 388, (2023) 26 PRNZ 288 at [5].

The summary judgment

[5]    The defendant sought to resist recognition of the Guangzhou judgment on four grounds:

(a)the Guangzhou Court did not have jurisdiction;

(b)the defendant had not received sufficient notice of the proceeding or an opportunity to be heard, in breach of the principles of natural justice;

(c)the judgment was obtained by fraud; and

(d)the judgment was not final and conclusive and for a definite sum of money.

[6]    In the judgment, I rejected each of those grounds. The defendant’s application for recall is concerned only with the argument that the Guangzhou judgment was obtained by fraud.

[7]    The defendant argues that the plaintiffs misled the Guangzhou Court to believe that the defendant was resident in China, at the time of the proceeding in the Guangzhou Court, when he was resident in New Zealand. This caused the Guangzhou Court to assume jurisdiction.

[8]    The defendant’s application for recall focuses on two paragraphs from the judgment:

[70]      Regarding the first ground, the court record confirms that the Guangzhou Court made its own enquiry of the Register to ascertain Mr Liu’s address, which was stated in the Register to be in Guangzhou. That address was later confirmed when Mr Liu filed his power of attorney.

[71]      There is no arguable basis to resist recognition of the Guangzhou judgment on the grounds of fraud.

The defendant’s argument

[9]    Counsel for the defendant submits that the above findings appear to rest on an assumption that the plaintiffs were unaware that the defendant was resident in

New Zealand, overlooking the defendant’s evidence that the lawyers who acted for the plaintiffs against him in the Guangzhou proceeding were the same lawyers who had acted for him in previous proceedings in China, and that those lawyers were aware that the defendant resided in New Zealand. The knowledge of those lawyers should be imputed to the plaintiffs.

[10]   Counsel for the defendant submits that this evidence of a critical fact was overlooked by the Court because the plaintiffs failed to incorporate an affidavit from the defendant in the common bundle. The defendant’s affidavit in question is dated 12 November 2024, and was subject to admissibility objections by the plaintiff.

[11]   Further, it is submitted that procedural failures during the Guangzhou proceeding and this proceeding amount to a special reason to recall the judgment.

Analysis

[12]   In the judgment, I began my discussion of the defendant’s fraud argument by reference to the apposite legal principle: to establish fraud, the defendant must show that the judgment was obtained by intentional dishonesty.6

[13]   In an earlier part of my judgment, dealing with the issue of jurisdiction, I had made findings of fact which were also relevant to the fraud argument:

[40]      Mr Liu was content to be the applicant in two other proceedings that he commenced in the Guangzhou Court. The proceedings were extant in 2021. Mr Liu sought to distance himself from those proceedings. He says that those proceedings were commenced in his name before 2018, and that the only steps that he took in 2021 were to authorise discontinuances.

[41]      A written ruling from the Guangzhou Court in each of those proceedings confirms that Mr Liu was named as the applicant and that he was “domiciled/resides in Yuexiu District, Guangzhou”. The ruling in one of the proceedings records that the proceeding was commenced on 20 July 2021 and withdrawn on 3 September 2021. The commencement of this proceeding while Mr Liu was resident in New Zealand cannot amount to a submission to jurisdiction in the Guangzhou proceeding, but it is part of the surrounding circumstances.

[42]      The power of attorney is the critical document. The main body of the power of attorney signed by Mr Liu included the Guangzhou address. By

6      Eight Mile Investments Ltd v Liu, above n 1, at [67], citing Johnson v Johnson [2017] NZCA 147, [2017] 3 NZLR 435 at [36]–[44].

authorising his agents in China to present the power of attorney to the Guangzhou Court, Mr Liu represented to the Court that he remained a Chinese citizen resident in Guangzhou.

[43]      A copy of Mr Liu’s Chinese Resident’s identity card, which states that he is domiciled at the Guangzhou address, was attached to the power of attorney. Mr Liu denies any knowledge of that, and he says that occurred without his authority. Even if that is true, it is immaterial given that Mr Liu signed the power of attorney giving the same address.

[44]      Mr Jiang’s evidence is that the power of attorney did not comply with the technical requirements prescribed by Chinese law for a power of attorney provided by a foreign national resident outside of China. Even if that is correct, it does not alter the fact that Mr Liu executed the power of attorney and authorised his agents to file it in the Guangzhou Court and to accept service of the proceeding.

[45]      On receipt of the power of attorney, the Guangzhou Court promptly served Mr Liu’s agents with the statement of claim and evidence in support of the claim, on 27 October 2021. When Mr Liu received those documents, he knew that Eight Mile and Mr Leung were seeking judgment against him and the basis for the claim. He did not protest the jurisdiction of the Guangzhou Court.

[46]      Mr Liu did not withdraw his power of attorney until 6 December 2021, when he knew that a hearing was scheduled for 10 December 2021 and that he was in jeopardy of the Guangzhou Court entering a judgment against him. At no time did he notify the Court that he was resident in New Zealand or that he protested the jurisdiction of the Court.

[14]   The defendant’s affidavit dated 12 November 2024 was read by the Court. It was part of a third volume of the common bundle of documents, filed in Court on the morning of the hearing. The plaintiffs’ admissibility objections were dealt with on the basis that I would determine any germane admissibility objections, if necessary, after submissions had closed. The parties consented to this approach.

[15]   As it transpired, I did not exclude any of the evidence filed on behalf of the defendant. All evidence included in the third volume of the common bundle of documents was admitted into evidence and read by the Court. It was open to the defendant to advance arguments on that evidence during the hearing. There is no basis to recall the judgment on the ground that relevant evidence was not before the Court.

[16]   The defendant now seeks to advance an argument based on the principles of agency law. The defendant argues that the plaintiffs were imputed with knowledge that the defendant resided in New Zealand because the plaintiffs’ solicitors knew that

fact. The plaintiffs misled the Guangzhou Court to believe that the defendant resided in Guangzhou City, causing the Guangzhou Court to assume jurisdiction.

[17]   It was open to the defendant to make that argument at the hearing. An application for recall is not the appropriate means to introduce that argument now.

[18]   In any event, I remain of the view that it is not arguable that the Guangzhou judgment was obtained by the plaintiffs’ intentional dishonesty. The Guangzhou Court assumed jurisdiction because the proceeding was served in Guangzhou on the defendant’s nominated agent. It was the defendant’s own conduct, of providing the Guangzhou Court with an executed power of attorney appointing that agent, that provided the foundation for the Guangzhou Court to assume jurisdiction.

[19]The procedural failures relied on do not support a recall of the judgment:

(a)the alleged failures in the Guangzhou proceeding are an attempt to relitigate natural justice challenges rejected in the judgment; and

(b)the alleged failures in this proceeding do not impugn the judgment and there is no application to set the judgment aside.

Result and costs

[20]The defendant’s application for an order recalling the judgment is declined.

[21]   The defendant shall pay the plaintiffs’ costs of preparing submissions in opposition to the application based on a 2A basis (0.5 day) of $1,195.

Associate Judge Brittain