Zhang v Yu

[2020] NZCA 592

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA75/2019
 [2020] NZCA 592

BETWEEN	YIHUIA ZHANG First Appellant DR WEI HU Second Appellant
AND	CHUNLIN YU Respondent

Hearing:	29 July 2020
Court:	Collins, Peters and Whata JJ
Counsel:	C J C McLean for Appellants W E Andrews for Respondent
Judgment:	1 December 2020 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed insofar as it relates to the protest as to jurisdiction.  The appeal is otherwise dismissed.

BThe decision in relation to protest as to jurisdiction, quashing the freezing order and dismissing the proceedings is set aside.

C        The protest to jurisdiction is referred back to the High Court for reconsideration. 

DThe respondent is to pay one set of costs to the appellants for a standard appeal on a band B basis.

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REASONS OF THE COURT

(Given by Whata J)

Introduction

1. On 27 August 2018 Ms Zhang and Dr Hu obtained judgment by default against Ms Yu for deceit in relation to an investment into a foreign currency dealer operated by Ms Yu, Honest Deal Holdings Company Ltd (Honest Deal) in New Zealand (default judgment).[1]  Ms Yu subsequently invited van Bohemen J to recall his default judgment.  She claimed, among other things, that Ms Zhang and Dr Hu misled the Court about key facts, including that a meeting about the investment took place at Ms Yu’s New Zealand home in July 2014.  Immigration records show Ms Yu was not in New Zealand in July 2014.  Ms Yu also filed a protest as to jurisdiction, claiming that China is forum conveniens, because that is where the agreement to invest was executed.

   [1]Zhang v Yu [2018] NZHC 2215 (Default judgment).

2. On 29 January 2019 van Bohemen J recalled his default judgment and set it aside (first recall judgment).  He upheld the protest to jurisdiction.[2]  Ms Zhang and Dr Hu then applied to have the first recall judgment recalled, claiming that the Court misinterpreted the evidence about the July 2014 meeting.  This application was dismissed on 19 February 2019 by van Bohemen J (second recall judgment).[3]

   [2]Zhang v Yu [2019] NZHC 29 (First recall judgment).

   [3]Zhang v Yu [2019] NZHC 206 (Second recall judgment).

3. This is an appeal against the decision to recall the default judgment, the protest to jurisdiction decision, and the refusal to recall the first recall judgment.

Issues on appeal

1. The appeal raises three key issues:

   (a)whether the solicitors on the record are authorised to act for Ms Yu;

   (b)whether the High Court was correct to recall its judgment in advance of determining whether to uphold the protest as to jurisdiction; and

   (c)whether the High Court was correct to uphold the protest to jurisdiction.

2. We see nothing in the first issue.  We have affirmation evidence of Ms Yu’s solicitor in China providing signed written confirmation of authority to act.  Mr McLean, counsel for the appellants, nevertheless maintained there was insufficient proof Ms Yu authorised the solicitors on the record…