Tianjin Yingtong Materials Co Ltd v Young

1. [1]

   HER HONOUR: In this matter, the plaintiff seeks leave to enforce a Chinese Judgment.

2. [2]

   The plaintiff is Tianjin Yingtong Materials Co Ltd. The defendant is Katherine Young. The plaintiff was represented by Mr Dinelli. The defendant was self-represented. She appeared by video link. She was articulate. The plaintiff relied upon the affidavit of Guijie Miao affirmed 30 July 2021.

3. [3]

   By way of summons filed 9 August 2021, the plaintiff relevantly seeks:

   1. (1)

      The defendant pay the plaintiff US$1,955,840.98 and EUR€112,053.71 being the judgment sum and fees the subject of the civil judgment of the Shanghai Pudong New Area People’s Court dated 29 March 2010 (“the Chinese Judgment”).

   2. (2)

      Interest pursuant to the Chinese Judgment and/or pursuant to statute.

Background

1. [4]

   The foreign proceedings were commenced on or about 7 April 2009 in the Shanghai Pudong New Area People’s Court (“the Chinese Court”) against three defendants, being:

2. [5]

   In the Foreign Proceeding, the plaintiff sought payment of US$1,955,840.988 and EUR€112,053.716, plus interest, in satisfaction of certain contractual obligations owed to it by the Original Defendants. The relevant contractual arrangements between the parties, as determined by the Chinese Court, are summarised as follows:

3. [6]

   The Chinese Judgment records that each of the Original Defendants had legal representation before the Chinese Court, being two representatives of Shanghai Xuyizhu Law Firm who were agents “ad litem jointly delegated” by the three Original Defendants. The relevant portions of the Judgment are as follows (CB 55-57):

4. [7]

   On 29 March 2010, the foreign judgment was entered. The Court ordered:

   1. (1)

      The [First and Second Original Defendants] shall pay the [plaintiff] the debt in the amount of USD1,955,840.988 and EUR112,053.716 within 10 days from the effective date of this judgment;

   2. (2)

      The [First and Second Original Defendants] shall pay the [plaintiff] the overdue fine at 1% of the debt principal on a daily basis from January 1, 2009 to the effective date of this judgment, which shall be paid together with the debt principal;

   3. (3)

      The Defendant YANG Hong [the defendant] shall assume joint and several liability for the above payment obligation of the [First and Second Original Defendants];

   4. (4)

      If the three Defendants fail to fulfill the obligation of making pecuniary payment, the interest on the debt shall be paid double during the period of delay in accordance with Article 229 of the Civil Procedure Law of the People’s Republic of China.

5. [8]

   An appeal from the Foreign Judgment was deemed to be withdrawn, by reason of a failure to pay the appeal fee, the effect of which was that the Chinese Judgment “shall come into force immediately”.

6. [9]

   Mr Miao, the director of the plaintiff, deposed that the plaintiff received CNY4,035,221.85 (approximately US$646,670.17 at that time) on 20 May 2014 as part payment of interest. The quantum of that payment is confirmed in a letter from the Chinese Court dated on or about 21 July 2014 (“the Court letter”) (CB 290). The plaintiff submits that the Judgment amount, being the sum of US$1,955,840.988 and EUR€112,053.716, remains unpaid.

7. [10]

   As a secondary matter relating to quantum, the Court Letter indicates that due to a registration error the plaintiff is or may be required to return a portion of the Interest Payment to the special account for enforcement of the Chinese Court to be paid in turn to a prior ranking creditor, Shanghai Minhang Branch of Bank of China Limited. The amount requested to be returned by the plaintiff was CNY195,926.70. The evidence does not clarify whether that amount has been returned or is yet to be returned. To assist with an expeditious resolution of these proceedings, the plaintiff does not seek to amend the Summons or claim an amount to compensate the plaintiff in relation to that amount.

Legal principles

1. [11]

   The plaintiff seeks to have the Chinese Judgment enforced as a judgment of the Supreme Court of New South Wales.

2. [12]

   The plaintiff’s application is made pursuant to Australia’s common law principles for recognition and enforcement of foreign judgments. This is necessary because the courts of China are not prescribed by the Foreign Judgments Regulations 1992 (Cth) for the purpose of registration under the Foreign Judgments Act 1991 (Cth).

3. [13]

   The common law principles establish four conditions which must be satisfied in order for a foreign judgment to be recognised and enforced at common law. In Bao v Qu; Tian (No 2) [2020] NSWSC 588 (“Bao”), Rothman J summarised those principles at [23]-[29]:

4. [14]

   The plaintiff submitted that the onus rests on the party seeking to enforce the foreign judgment to establish these four requirements. If this Court is satisfied that each has been established, the judgment is prima facie enforceable as a valid obligation.

5. [15]

   As to the first element, the plaintiff submitted that the jurisdictional element is plainly satisfied by reason of the defendant’s submission to the jurisdiction of the Chinese Court. By filing an unqualified appearance, the defendant submitted to the jurisdiction of the Chinese Court in the manner described in The Victorian Phillip-Stephan Photo-Litho Co v Davis (1890) 11 LR (NSW) 257. On the face of the Chinese Judgment, it can be seen that the defendant filed an appearance and was represented by legal counsel, namely XU Shen and ZHUANG Zhi of Shanghai Xuyizhu Law Firm.

6. [16]

   The plaintiff referred to Bao, where the Supreme Court accepted that the requirement that the foreign court have international jurisdiction can be satisfied where the defendant submits to the jurisdiction of the foreign court, including by arguing or appearing to argue the merits of the case. Rothman J explained at [27]:

7. [17]

   As to the second element, the plaintiff submitted that the Foreign Judgment is final, in that “it must put to an end the proceedings concerned and quell the controversy between the parties to the dispute”. While the fact that a judgment may be subject to appeal does not, in principle, affect the finality of the judgment. In this case the judgment is final as an appeal of the Chinese Judgment was initiated by the defendant (and the other Original Defendants), and was dismissed. The Foreign Judgment is, therefore, final and conclusive of the matters which it decided.

8. [18]

   As to the third element, the plaintiff contends that the identity of the parties is satisfied on the face of the Chinese Judgment and the Summons.

9. [19]

   As to the fourth element, the judgment is for a fixed sum.

10. [20]

    The four common law requirements for recognition and enforcement of a foreign judgment have been satisfied. The Chinese Judgment is prima facie enforceable as a valid obligation.

11. [21]

    Where the four conditions of relevant common law principles, referred to above, have been established, the recognition of the foreign judgment can then only be challenged on limited grounds including:

12. [22]

    The plaintiff submitted that none of these grounds are satisfied in these proceedings. The plaintiff submitted that the defendant makes contentions that the Chinese Judgment was obtained by fraud and secondly that she was denied natural justice by the Chinese Court. As I understand it the defendant is not contending that, but she makes submissions to the effect that the judgment should not be enforced and she should be refunded the amount she has paid by the sale of various properties.

13. [23]

    It is not open to the defendant to challenge the intrinsic merits of the Chinese Judgment, whether by alleging that the Chinese Court made a mistake as to fact or law. However, these is a possible exception of fraud, as explained by Rothman J in RDCW Diamonds Pty Ltd v Da Gloria [2006] NSWSC 450 at [31]:

14. [24]

    The plaintiff submitted that it is trite to say that any claim based on fraud must be pleaded distinctly and with particularity. This is made plain by the UCPR. The defence does not do this, but, in any case, what is referred by the defendant would not support such a defence.

15. [25]

    The law requires that the defendant must establish fraud, once the plaintiff has established the prima facie enforceability of the judgment. Critically, such fraud must be strictly proved. A mere suspicion of fraud (even if raised by fresh facts later discovered, which is not the case here) is not sufficient to secure relief. Further, it must be shown by admissible evidence that the successful party, in this case the plaintiff, was responsible for the fraud.

16. [26]

    The defendant in her affidavit dated 22 November 2021 appears to allude to possible fraud, by the following (bare) allegations:

17. [27]

    The defendant seeks that this Court rejects the application of the plaintiff on the following basis:

18. [28]

    The defendant’s written submissions and defence cover the same subject matter as above.

19. [29]

    I shall refer to the defendant’s main complaints set out in her defence. The defendant was the guarantor of the two company entities’ debts. The main complaints set out in the defendant’s defence are as follows:

    1. (1)

       The Civil Judgement of Shanghai Pudong New Area People's Court (Pudong Court) dated March 29, 2010 was done based on fake agreements. The judgment was unfair to the three defendants in the case.

    2. (2)

       The defendants didn't sign any agreement with the plaintiff in the Civil Judgement. The three defendants reported to the Economic Crime Investigation Detachment of Putuo Sub-Bureau of Shanghai Public Security Bureau (Putuo Sub-Bureau) about the fake contracts when receiving the Court Summons from Pudong Court. The Putuo Sub-bureau accepted it and carried out the investigation.

    3. (3)

       The defendant explained that in 2008, an importer of recycling products had to hold a license. The product in the agreements was Recycling Plastic Film/LDPE Film 98/2 (recycled products) which was to be imported from Germany to China with the compliance of a certain qualification (AQSIQ registration, Chinese Quarantine registration) in 2008. Both the importer and the end user should have permission to import Recycling products to China according to the Chinese Quarantine regulation in place as of 2008. The importer or the party importing as an agent for another company should be responsible for doing the customs declaration under its own name. Only once it had met all the above conditions, was the company permitted to itself import or as an agent to import Recycling products and were entitled to sign the Import Agency Agreement. The plaintiff had no compliance to import or be an agent to import the Recycling Plastic Film in 2008. None of the Customs Declaration Certifications were done under the name of the plaintiff (the defendant explained how both the plaintiff and the defendant used offshore companies when importing the recycled products). Thus, the plaintiff was not entitled to enter any Import Agency Agreement or, alternatively, the agreement was invalid even if it was made.

20. [30]

    In oral submissions, the defendant explained that:

    1. (1)

       The plaintiff has 1663.315 tonnes of cargo in its own warehouse that was delivered by the plaintiff in early December 2008 (T52.18-43).

    2. (2)

       The timeline is not compliant with when the actual things that happened (T50.42-51.2).

21. [31]

    So far as the supplementary agreement is concerned, the defendant contended that no exact signing date of the supplementary agreement was given by the plaintiff.

22. [32]

    The defendant also alleges that she was denied natural justice by the Chinese Court. As the defendant did not keep any of the cargo, she alleges that she is not obliged to pay any money to the plaintiff. The defendant requests that the plaintiff compensate her as follows:

23. [34]

    The plaintiff’s Counsel submitted that, in relation to the defendant’s allegation of fraud, there is an interesting but is an ultimately irrelevant question of law lurking in this area of discourse.

24. [35]

    In Australia, an allegation of fraud must be an allegation of fraud based on evidence not available or not reasonably discoverable at the time of the foreign proceedings, in order to attract consideration by the court in the local forum. In Keele v Findley (1990) 21 NSWLR 444, Rogers CJ Comm D refused to follow the earlier English decisions which, as his Honour observed, had been unanimously condemned by academics, and moreover reasoned that the same rule should apply for the enforcement of local and foreign judgments in the face of allegations of fraud.

25. [36]

    Support for that decision is found in the decision of Rothman J in Xplore Technologies Corp of America v Tough Corp Pty Ltd [2008] NSWSC 1267, who stated that Keele was “the preferable view”. Bathurst CJ, with whom Gleeson JA and Sackville AJA agreed, explained, in Quarter Investments Pty Ltd v Allardyce Lumber Company Ltd (2014) 85 NSWLR 404, that, while it was not appropriate to express a concluded view on the issue given the facts of that case, nonetheless gave six “powerful reasons” for preferring Keele to the authority often cited in support of the opposing view, Yoon v Song (2000) 158 FLR 295. Those reasons, insofar as they apply to the common law position, are plainly to be preferred. I accept the plaintiff’s submission that any evidence that was reasonably available or discoverable at the time of the hearing in the foreign court cannot be used to impugn the foreign judgment. The rule for the foreign judgments is the same as that which applies to domestic judgments.

26. [37]

    Applying that principle here, and even accepting the plaintiff’s allegations at their highest, those allegations of fraud must fail. All of the matters relied on by the defendant were available to her at the time of the foreign judgment. The Chinese Court considered the very evidence and matters which form the substance of the defendant’s allegations referred to earlier in this judgment:

27. [38]

    Such allegations are further overcome by other material submitted by the defendant, along with its annexures (assuming they are properly admitted), including the following:

28. [39]

    None of the matters raised by the defendant point to any evidence concerning a possible fraud that was not available at the time of the hearings of the foreign proceedings. On any view, the Chinese Court was appraised of those very concerns during the course of the Foreign Proceedings and nonetheless confirmed that the Import Agreements and the Supplementary Agreement reflected “each party’s true intention, and shall be confirmed according to law”. Thus the defendant’s claim of fraud does not disentitle the plaintiff from registering the Chinese judgments in this court. The defendant says she was denied natural justice in the Chinese Court, but after a careful reading of the translated judgment transcript, I find that these claims are unsubstantiated.

29. [40]

    The defendant requests compensation from the plaintiff as set out at [33] of this Judgment on the basis that she did not keep any of the cargo, and is therefore not obliged to pay any money to the plaintiff. Taking this allegation at its highest, this appears a submission as to why the enforcement of the decision would amount to a denial of natural justice. The difficulty with this submission is that this complaint should have been made to the Chinese Court.

30. [41]

    While it is not pleaded, the plaintiff noted that the limitation period for action upon a foreign judgment is 12 years from the date on which the judgment becomes enforceable in the place where judgment was given: see s 17 of the Limitation Act 1969 (NSW). Here, it is relevant that the Chinese Judgment is dated 29 March 2010, the Chinese Appeal Judgment is dated 1 June 2010 and these proceedings were commenced by Summons filed on 9 August 2021, less than 12 years from the date of each of the above decisions.

31. [42]

    The relevant limitation period has not yet expired. Hence there is no time bar to the current proceeding for enforcement of the Chinese Judgment.

32. [43]

    None of the matters raised by the defendant’s defence, written submissions and oral submissions referred to in this judgment defeat the registration of this Chinese Judgment. The Chinese Judgment is to be registered in this Court.

Interest

1. [44]

   The plaintiff claims interest on the debt by applying a UCPR pre-judgment interest calculation pursuant to s 100 of the Civil Procedure Act 2005 (Cth) which reads:

2. [45]

   It is common ground that the defendant has sold two properties in Australia. The the proceeds have been paid to the plaintiff to reduce the amount of the judgment debt. The defendant has checked the calculations and while she may not agree that she is obliged to pay interest, she has agreed that the calculations are correct. The interest owed is in accordance with the calculations set out in the Annexure attached at the end of this Judgment.

Costs

1. [46]

   Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.

   1. (1)

      The defendant pay the plaintiff USD$1,946,707.99 and EUR€112,053.71.

   2. (2)

      The defendant pay the plaintiff interest in the amount of USD$838,860.47 and EUR€84,811.00. Such interest is calculated in accordance with the attached schedule.

   3. (3)

      The defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court orders:

1. [47]

   Interest is calculated applying pre-judgment interest, pursuant to s 100 of the Civil Procedure Act 2005 (NSW): see, eg, Bao at [58](2).