Liu v Li
[2025] NZHC 2472
•28 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-400
[2025] NZHC 2472
BETWEEN SHEN LIU
Plaintiff
AND
CHAO LI
Defendant
Hearing: 27 August 2025 Counsel:
Plaintiff in person (JS Harborne as translator) Defendant in person
Judgment:
28 August 2025
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 28 August 2025 at 11 am.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Copy to:
Shen Liu, China Chao Li, Auckland
LIU v LI [2025] NZHC 2472 [28 August 2025]
Introduction
[1] In 2018, the plaintiff, Shen Liu (Mr Liu), advanced RMB 800,000 to Baosheng Li, the father of the defendant, Chao Li (Mr Li). Mr Liu says that Baosheng Li was acting as Mr Li’s agent, and that the terms of the loan are confirmed in a written agreement from 2019 that Baosheng Li signed on behalf of Mr Li. The transaction was in China.
[2] On 30 April 2020, Mr Liu commenced a proceeding (the Jinming proceeding) against Mr Li in the People’s Court of Jinming District, Kaifeng City, Henan Province of China (the Jinming Court) to recover the amount allegedly due on the loan. On 6 May 2021, the Jinming Court entered judgment against Mr Li for RMB 800,000 together with interest (the Jinming judgment).
[3] In 2024, Mr Liu commenced this proceeding, requesting this Court to recognise and enforce the Jinming judgment. Mr Liu applied for summary judgment. The application was opposed by Mr Li, and subsequently discontinued.1 Mr Li now applies for an order striking the proceeding out.
[4] Both parties are self-represented. The grounds advanced by Mr Li in support of strike-out are:
(a)a challenge to the merits of the Jinming judgment;
(b)an allegation that Mr Liu is bringing the proceeding for an ulterior purpose, to extract an unjustified commercial settlement from Mr Li; and
(c)procedural challenges to the Jinming judgment, based on Mr Li’s status as a permanent New Zealand resident and citizen at the time that the Jinming proceeding was commenced.
1 Liu v Li HC Auckland CIV-2024-404-400, 1 August 2024 (Minute of Moore J).
[5] The last of these grounds is in substance a challenge to the jurisdiction of the Jingming Court. The application for strike-out can be resolved on that ground.
Strike-out principles
[6] Pursuant to r 15.1(1) of the High Court Rules 2016, the Court may strike out all or part of a pleading if it:
(a)discloses no reasonably arguable cause of action; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the Court.
[7] The principles governing strike-out applications are summarised in the Court of Appeal decision in Attorney-General v Prince and Gardner:2
(a)A strike-out application is to proceed on the assumption that the facts pleaded in the statement of claim are true unless those pleaded facts are entirely speculative and lack any foundation.
(b)It is only where, on the facts alleged in the statement of claim, however broadly they are stated, no private law claim of the kind or kinds advanced can succeed that it is appropriate to strike out the proceedings at a preliminary stage.
(c)The threshold for strike-out is high. Before a proceeding may be struck out, the causes of action must be so clearly untenable that they cannot possibly succeed.
(d)The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.
2 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.
(e)The fact that an application to strike out raises difficult questions of law, and requires extensive argument, does not exclude the jurisdiction.
Legal principles — recognition of foreign judgments
[8] The applicable principles were recently summarised by this Court in Eight Mile Investments Ltd v Liu:3
[15] The legal test for recognition and enforcement of an unregistered foreign judgment in this Court comprises three prerequisites:4
(a)the foreign court must have had jurisdiction to give judgment;
(b)the judgment must be for a definite sum of money; and
(c)the judgment must be final and conclusive.
[16] The burden of establishing these prerequisites lies on the party seeking to enforce the foreign judgment.
[17] If this test is met, there are three settled exceptions to recognition, where:5
(a)the judgment was obtained by fraud;
(b)enforcement of the judgment would be contrary to public policy; or
(c)the proceedings in which the judgment was obtained were contrary to natural justice.
[18] The burden of raising an exception lies on the party seeking to impeach the judgment.6 A foreign judgment is not otherwise impeachable on its merits for error of fact or law.
[19] The conceptual foundation of this Court’s jurisdiction to enforce a foreign judgment is that the foreign judgment creates an enforceable obligation in the nature of a debt. The recognition of foreign judgments reflects the transnational reality of private obligations.7
[20] The leading authority in New Zealand is the Court of Appeal’s judgment in Von Wyl v Engeler.8 Drawing on the leading text, Dicey and Morris on the Conflict of Law,9 the Court confirmed that the question of
3 Eight Mile Investments Ltd v Liu [2025] NZHC 526 at [15]–[25].
4 Eilenberg v Gutierrez [2017] NZCA 270, [2017] NZFLR 471 at [30].
5 At [30].
6 Kemp v Kemp [1996] 2 NZLR 454 (HC) at 458.
7 Eilenberg v Gutierrez, above n 4, at [35] and [49].
8 Von Wyl v Engeler [1998] 3 NZLR 416 (CA).
9 Dicey and Morris on the Conflict of Laws (12th ed, Sweet & Maxwell, London, 1993).
whether a foreign court had jurisdiction must be determined by New Zealand’s rules on the conflict of laws, and not the foreign court’s own law.10
[21] Richardson P stated that the foundation of the jurisdiction of a foreign court in personam is service of the proceeding on the defendant. Service within the foreign jurisdiction can be personal service or substituted service. If service is outside of the foreign jurisdiction, then substituted service will not suffice to found jurisdiction.11
[22] Citing Dicey, Richardson P summarised the rules for determining a foreign court’s jurisdiction:12
Jurisdiction in personam exists where the debtor was present in the foreign country at the time the proceedings were instituted; or where the judgment debtor was plaintiff or counterclaimed in the foreign Court; or where, being defendant in the foreign Court, submitted to the jurisdiction of that Court by voluntarily appearing in the proceedings; or before the commencement of the proceedings agreed in respect of the subject-matter of the proceedings to submit to the jurisdiction of that Court or of the Courts of that country (pp 472 – 473); and an agreement to submit may take the form of an agreement to accept service at a designated address (p 483).
[23] Regarding the concept of submission to a foreign court’s jurisdiction, Richardson P said:13
The principle underlying the concept of submission to the jurisdiction is that a person who would not otherwise be subject to the jurisdiction of the Court may preclude himself or herself by his or her own conduct from objecting to the jurisdiction and thus giving the Court an authority over that person which, but for that submission, it would not possess (p 310). Accordingly, the onus is on the party seeking to enforce the foreign judgment to establish that the non-resident accepted the jurisdiction of the foreign Court to determine the proceeding. It follows that a person who appears merely to contest the jurisdiction of the Court does not thereby submit:
“In order to establish that the defendant has, by his conduct in the proceedings, submitted or waived his objection to the jurisdiction, it must be shown that he has taken some step which is only necessary or only useful if the objection has been waived or never been entertained at all” (p 311).
The crucial question, then, is whether the absent defendant is shown to have conferred jurisdiction on the foreign Court by submitting to it or agreeing to submit to it.
[24] In Von Wyl, the defendant was formerly a Swiss national and resident in New Zealand at the time of the proceeding. Judgment was obtained against the defendant in a Swiss court. After the proceeding had been issued in
10 Von Wyl v Engeler, above n 8, at 420.
11 At 421.
12 At 420, citing Dicey and Morris, above n 9.
13 At 421, citing Dicey and Morris, above n 9.
Switzerland, the Swiss Embassy had arranged delivery of a letter to the defendant in New Zealand which advised of the proceeding and requested that the defendant designate an agent in Switzerland to accept service. The defendant replied to the Swiss court, proposing that the Swiss court accept service on his behalf. The Swiss court declined to do so and entered a default judgment.
[25] Richardson P held that the defendant’s appointment of the Swiss court to accept service was conditional on the Swiss court accepting its appointment as agent, and the condition was not fulfilled. Submission to the foreign jurisdiction by instructing or authorising someone to accept service on behalf of the defendant required proof that the proposed agent was willing to accept service as agent, and actually did so without qualification.
Discussion
[9] Neither party gave evidence of having undertaken a search of the file of the Jinming Court in respect of the Jinming proceeding. However, there are sufficient documents in evidence to determine the key steps in the Jingming proceeding.
[10]The Jinming judgment records:
(a)an address for Mr Li on Hanxing Road in Kaifeng City;
(b)Mr Liu’s claim was filed and accepted by the Jinming Court on 30 April 2020;
(c)a public hearing took place before a collegial panel of a judge and two people’s jurors on 15 October 2020;
(d)Mr Liu appeared in person; and
(e)Mr Li was “lawfully summoned by the Court” and did not appear. The case was concluded in his absence.
[11] Mr Li’s evidence is that he had no knowledge of the Jinming proceeding until he was served with this proceeding in 2024. He was not personally served with any documents giving him notice of the Jinming proceeding.
[12] Mr Li has been a permanent New Zealand resident since 2006. He became a New Zealand citizen in 2019. His last visit to China was from January 2019 to April 2019.
[13] There is no document available from the Jinming Court to confirm the mode of service of the summons to Mr Li to appear in the Jinming proceeding. However, an email from Mr Liu to Mr Li on 3 August 2024 confirms that the Jinming Court served the Jinming proceeding on Mr Li by public notice. In Mr Liu’s written submissions in opposition to the strike-out, he confirms that the public notice was published in the People’s Court Daily newspaper. Mr Liu says that he also notified Mr Li of the Jinming proceeding by email.
[14] Mr Liu argues that Mr Li was validly served with the Jinming proceeding according to Chinese law. He refers to what he considers to be the relevant extracts from the PRC Nationality Law. The source of that law was not produced in evidence.
[15] Mr Liu’s claim to enforce the Jinming judgment in New Zealand faces a fundamental difficulty. Mr Liu has admitted that the Jinming proceeding was served on Mr Li by substituted service by publication of a notice in a newspaper. Whether that mode of service complies with Chinese law is irrelevant. Jurisdiction of the Zealand court.14 Service by public notice or email is insufficient.
[16] Mr Liu attempts to overcome this difficulty by relying on two documents executed by Mr Li in 2019 while he was in China, which confirmed an address for service of a proceeding (the Longting proceeding) in the People’s Court of Longting District, Kaifeng City, Henan Province (the Longting Court). Mr Liu argues that these documents amount to an agreement by Mr Li to submit to the jurisdiction of the courts of China, by agreeing to accept service at a designated address in China.
[17] Mr Liu has produced copies of the original Mandarin versions of the documents, and English translations. I refer to the English translations.
14 At [21], citing Von Wyl v Engeler, above n 8, at 421. See also Hangzhou Shengzhe Trade Co Ltd v He [2012] NZHC 3536 at [24]; and Laura O’Gorman (ed) Sim’s Court Practice (online ed, LexisNexis) at [REJ1.3(e)].
[18] Each document comprises one page and is a standard form document from the Longting Court, with particulars inserted by or on behalf of Mr Li. Mr Li explained in submissions that he was present in China when he completed and signed the documents. That is consistent with his affidavit evidence of his visit to China in early 2019.
[19] Mr Li says that he and his parents were contacted by the Longting Court to ascertain an appropriate address for service of a pending court proceeding. Mr Li was unsure whether the proceeding was against him, his parents, or Henan Shuoyuan Declaration Engineering Co Ltd (HSDE), which he describes as his parents’ company. Mr Li acknowledges that he was a legal representative of HSDE at the time.
[20] Each document is titled “Confirmation of Delivery Address for the Party Involved”. The form contains explanatory notes and blank spaces to be filled in, including the name of the “Party Involved” and the delivery address.
[21] On one form, Mr Li entered the name of HSDE and an address on Daliang Road in Kaifeng City as the delivery address, which was the current address of HSDE’s business premises. Mr Li is named on the second form and the same delivery address was given. Mr Li signed both forms.
[22] Mr Liu argues that the second form is from Mr Li personally and amounts to a submission to the jurisdiction of Chinese courts generally.
[23] A submission to jurisdiction must relate to jurisdiction in respect of the proceeding in question. The second form may well have amounted to a submission to the jurisdiction of the Longting Court in respect of the subject matter of the Longting proceeding. However, I do not accept that the second form amounts to an agreement by Mr Li to submit to the jurisdiction of the Jinming Court in respect of the subject matter of the Jinming proceeding.
[24] Mr Liu and Mr Li agree that HSDE was not operating from the Daliang Road premises when the Jinming proceeding was commenced in 2020. The Daliang Road
address was not used in the Jinming proceeding and it is not stated in the Jinming judgment.
[25] The Jinming proceeding was not in contemplation when Mr Li signed the forms in respect of the Longting proceeding in 2019. The forms cannot amount to a submission by Mr Li to the jurisdiction of the Jinming Court in respect of the subject matter of the Jinming proceeding.
[26] Accordingly, there is no basis for this Court to recognise the Jingming judgment. Given this finding, it is not necessary for me to consider the other grounds advanced by Mr Li. Mr Liu’s proceeding discloses no reasonable cause of action and cannot succeed.
Orders
[27]The proceeding is struck out.
[28] The defendant is entitled to costs on a 2B basis. Some of the defendant’s steps in the proceeding were completed by his former legal representatives, and some were completed in person. I make the following directions regarding costs:
(a)by 12 September 2025, the defendant shall file and serve a written memorandum of no more than three pages setting out his claim for costs, by reference to the claimed steps in sch 3 to the High Court Rules 2016, including specification of whether each step was completed by a lawyer or the defendant in person;
(b)by 26 September 2025, the plaintiff may file and serve a memorandum in reply of no more than three pages; and
(c)I will then fix costs on the papers.
Associate Judge Brittain
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