Gui v Bi

1. [1]

   By notice of motion filed on 10 February 2026, the Defendant seeks an order pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that several questions concerning the status of a judgment handed down in the People’s Republic of China (PRC) be referred to a Chinese law expert resident in the PRC.

2. [2]

   The substantive proceedings were commenced by Summons on 23 December 2025 followed by a Commercial List Statement filed on 6 February 2026. The Plaintiff, who resides in the PRC, seeks the recognition and enforcement of a judgment (Chinese Judgment) he obtained from the Hefei Intermediate People's Court of Anhui Province in the PRC against the Defendant, who resides in Australia.

3. [3]

   The Plaintiff contends that between January and November 2015 he advanced approximately AU$15.38m to the Defendant and/or an entity described as “B1 Real Estate”, which is not a party to these proceedings. Those loans were documented by a number of Chinese- and English-language loan agreements entered between 20 January 2015 and 25 August 2015. There were also a number of Chinese-language IOUs confirming receipt of the loans.

4. [4]

   On or about 20 June 2024, the Plaintiff commenced proceedings in the Hefei Intermediate People’s Court of Anhui Province, and the Chinese Judgment was issued on or around 11 June 2025. By that judgment, the Defendant was required to pay amounts owing to the Plaintiff in respect of certain loans and interest.

5. [5]

   On 16 July 2025, the Defendant filed an appeal (the Appeal) against the Chinese Judgment with the Higher People's Court of Anhui Province. The Appeal was heard on 21 January 2026 and judgment is reserved.

6. [6]

   The Plaintiff now seeks to enforce the Chinese Judgment in Australia, despite the reserved Appeal.

7. [7]

   The Defendant, in her written submissions, concedes that she is liable to pay the sum of the Chinese Judgment obtained by the Plaintiff unless the Appeal is successful. At the same time, the Plaintiff in his Commercial List Statement boldly predicts that the Appeal “does not enjoy reasonable prospects of success and is unlikely to succeed and is likely to be dismissed or determined adversely to the Defendant.”

8. [8]

   The Commercial List Statement discloses several issues likely to arise, including whether this Court recognises the Chinese Judgment at first instance and, significantly for the purposes of this motion, whether the Chinese Judgment is final and conclusive. The Defendant proposes that the referee decides whether or not the Appeal has rendered the Chinese Judgment unenforceable.

9. [9]

   Mr Freeman of Counsel, who appears for the Defendant, submitted that a reference to a single expert in China is a more efficient, expedient and, presumably, cost-saving approach that would obviate the need for the Court to determine the matter because the single expert’s determination would, if adopted by the Court, dispose of these proceedings entirely.

10. [10]

    Before proceeding further, I note in passing that since the disposition of the Appeal may be determinative, it is curious that the Defendant seeks a reference rather than a stay of execution of the proceedings pending the determination of the Appeal.

Consideration

1. [11]

   In exercising my discretion, I must give effect to the overriding purpose contained in s 56 of the Civil Procedure Act 2005 (NSW) (CPA), which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. I must also have regard to the objects of case management contained in s 57 of the CPA.

2. [12]

   For several reasons it is not plain to me that ordering this reference would give effect to the overriding purpose.

3. [13]

   First, the adoption of the referee’s report under UCPR r 20.24 would require a hearing. There would thus be two hearings: first the reference one concerning the reference and then an adoption hearing. If the adoption hearing was contested, the Court would be required to consider whether the referee’s opinion as to the operation of Chinese law was infected with the kind of error that would enliven this Court's power to reject or modify the report.

4. [14]

   Secondly, whilst Mr Freeman argues that any challenge to the referee’s report would be limited to questions such as natural justice and would present a difficult hurdle to surmount, I have less confidence that an adoption hearing would be similarly limited or relatively straightforward. If the expert referee's report was challenged at an adoption hearing, the Court may well be required to consider the issue of Chinese law, a task which would eviscerate the time and cost savings upon which the Defendant relies in favour of ordering a reference.

5. [15]

   Thirdly, I am concerned by the complications that could arise if the Appeal is handed down after an order for reference has been made but before the reference concludes. Parties would in that situation incur costs which could otherwise have been spared. If the Appeal is handed down, in the absence of any reference process, but before the matter is determined by this Court, the proceedings may be brought to an end one way or another because, if the Higher People’s Court of Anhui Province upholds the Appeal and sets aside the Chinese Judgment, these proceedings may become unviable. In those circumstances, I do not consider that a reference is a desirable procedural step whilst the Higher People’s Court of Anhui Province’s decision remains outstanding.

6. [16]

   Finally, I do not, in the exercise of my discretion, regard it as desirable for an expert to determine these proceedings on a matter of law, whether that expert be in Australia or the PRC. This is particularly so where the parties have each already retained experts in Chinese law (albeit in relation to an earlier application that was resolved by consent).

7. [17]

   References are an important tool available to the Court. They are most commonly used in building and construction cases whereby an appointed subject matter expert, such as an engineer, architect or quantity surveyor can resolve complicated factual disputes quickly, easily and, ideally, cheaply, using their own experience where appropriate.

8. [18]

   In contrast, a distinct and narrow question of (Chinese) law is said by the Defendant to be capable of deciding these proceedings. That is a matter which this Court ought to determine itself with the assistance of expert evidence, which evidence has already been prepared. In circumstances where this Court is properly seized of jurisdiction, sending such a matter to a referee to effectively decide these proceedings would be a delegation to a third party of this Court’s decision-making obligations. I do not consider that to be an attractive proposition.

Orders

1. [19]

   For those reasons, I am not persuaded that a reference is warranted. Accordingly, I make the following orders:

   1. (1)

      The Defendant’s Notice of Motion is dismissed.

   2. (2)

      The Defendant is to pay the Plaintiff’s costs of the motion.