Chen v Lin [2014] NZHC 3210 (15 December 2014)

Last Updated: 19 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000665

CIV-2014-404-00942 [2014] NZHC 3210

BETWEEN	YANG CHEN Applicant / Plaintiff
AND	JIN ZHU LIN Respondent / Defendant

Hearing:	4 December 2014 (on papers)
Appearances:	R Reed for Applicant/Plaintiff A Kashyap for Respondent
Judgment:	15 December 2014

_{JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE}

This judgment was delivered by me on

15.12.14 at 12 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

CHEN v LIN [2014] NZHC 3210 [15 December 2014]

[1] In this proceeding the plaintiff successfully sought summary judgment for an order entering judgment in this Court for the amount that a Court of competent jurisdiction in the Republic of China had issued judgment against the defendant. On

23 July 2014 I entered judgment in favour of the plaintiff, for, so far as relevant, the sum of RMB 20 million and also made an order under s 145A of the Land Transfer Act 1952. The latter order is not a matter that calls for any mention in this judgment.

[2] Subsequently, the plaintiff’s counsel applied for an order recalling or varying the earlier judgment. The basis for making that application was that the plaintiff considered that the judgment was incomplete to the extent that it did not reflect an amount of interest which the Chinese Court had ordered to be paid in addition to the sum of RMB 20 million. The original judgment of the Court directed:

(ii) The Defendants Chen Shuqin Lin Jinzhu, Lin Tingting and Lin Feiteng should refund the transfer amount RMB $20,000,000 and corresponding interest (to be calculated according to the overdue loan interest rate of the same kind in the same period of the People’s Bank of China based on RMB $20,000,000 from May 14, 2009 to the date of repayment confirmed by this judgment) to the Plaintiff Chen Yang within the scope of inheritance of Lin Qiming’s heritage in ten days since the effective date of this judgment.

[3] On the day of the hearing of the defended summary judgment application, the plaintiff produced a further affidavit of Chen Long, the brother of the plaintiff. Counsel for the plaintiff says that this affidavit was produced in Court and I accept her account that that occurred on 24 June 2014. Probably because of the late filing of the affidavit, the Court registry of documents was not updated to record it. I might add that the plaintiff was not on his own in late filing documents because there were also documents filed for the defendant on 23 June 2014.

[4] However, the fact was that the affidavit was overlooked.

[5] The affidavit of 24 June 2014 stated, so far as relevant:

5. In my affidavit dated 17 June 2014, I included as an annexure “G” a copy of the preliminary interest calculations by the Courts in China. I have now received a final sealed calculation from the Courts in China that the total amount owing is $28,567,202.23 RMB. A

translated copy of the sealed calculation from the Courts in China is

annexed and marked “G”.

[6] The document exhibited as “G” to the affidavit of Chen Long had annexed to it a document in Chinese script which in the body of Chen Long’s affidavit is stated, when properly translated, to mean that the total amount owed by the defendant under the Chinese judgment was RMB $28,567,202.23 which included overdue interest apparently calculated up to June 2014 at the rate of 30 per cent. The Chinese Court’s calculation was that to the judgment sum of RMB 20 million there was to be added RMB $8,567,202.23. The copy of the statement from the Chinese Court which was exhibited was not particularly legible but appears to be dated at some time in June

2014.

Submissions by counsel for the defendant

[7] Mr Kashyap, in his usual practical way did not dispute that there was power on the part of the Court to recall a judgment. He further did not question that the document which was annexed to the affidavit of 24 June setting out what are said to be the “updated” interest calculations was in fact a document which had been issued from the relevant Chinese Court. That is to say, he did not dispute that the document purporting to be a document under the seal of the Fuqing Municipal People’s Court was indeed a document issued under the seal of that Court. It was the contention of counsel for the defendant that the Court ought not to order the interest that was included in the order of the Fuqing Municipal People’s Court which I shall refer to as the “interest judgment”.

[8] Before discussing Mr Kashyap’s contentions it should be noted that the interest judgment is undated. However because of statements in the contents of the document it can be inferred that the order makes provision for interest up until 19

June 2014.

[9] Mr Kashyap contended that the question of what if any interest ought to be paid should be determined by this Court and to that end, the Court should proceed on the basis that the Court has a discretionary power whether or not it awards interest:

Day v Mead.¹ Mr Kashyap submits that this discretionary power extends to a discretion to alter or amend the express interest provisions of the Chinese interest judgment.

[10] The second point that Mr Kashyap put forward was that the plaintiff had to provide expert evidence confirming the interest rate payable. This submission was made in reliance upon the judgment of this Court in Moylan Assurance Consultants Pty Limited v Hughes where the Court concluded: ²

The question of interest payable on judgement debt is itself a question of foreign law which must be established by way of appropriate expect evidence if it is sought to be applied in this Court. There is no such evidence and I do not consider the reference by the Court official to be a judgment interest rate contained in the certificate of judgment now placed before me is sufficient to act upon. The statement is not evidence, neither is it part of the judgment of the District Court. Accordingly, the Judicature Act 1908 applies.

[11] Mr Kashyap also referred to a statement in the Laws of New Zealand:³

78. Interest on foreign judgment. The plaintiff in an action on a foreign judgment may recover interest from the date of the foreign judgment to the date of judgment in New Zealand. The rate of interest is that payable on the foreign judgment under the law of the country in which the judgment was given, if that rate is adequately provided, or otherwise the rate prescribed under the Judicature Act 1908.

[12] Mr Kashyap submitted that in the absence of evidence to demonstrate the rate of interest payable and that the interest entered against the defendant was appropriate and acceptable practice in China, this Court should order that the interest rate prescribed in the Judicature Act 1908 should apply.

[13] Mr Kashyap further submitted that where there has been exceptional delay on the part of the plaintiff to enforce a judgment for debt, the plaintiff’s interest

_{entitlements should be reduced to reflect that delay.}

¹ _{Day v Mead [1987] NZCA 74; [1987] 2 NZLR 443 at 463.}

2. Moylan Assurance Consultants Pty Limited v Hughes HC Auckland CP951/89, 4 March 1991 per Henry J.

³ Laws of New Zealand Conflicts of Laws: Jurisdiction in Foreign Judgments (online ed) at [78].

Discussion

[14] I do not consider that the cases which the defendant has relied upon are on point. ⁴ They apply in cases where the amount of interest has not been established by the foreign court. If, as here, the judgment of the foreign court has quantified the amount of interest, there is no requirement for this Court to undertake that task. Certainly, up until the date of the Fuqing Municipal People’s Court interest judgment, the amount of interest up to 19 June 2014 was in fact quantified. That

judgment is enforceable at common law given that it is for a debt or definite sum of money and the judgment is final and conclusive.⁵

[15] It may be, although the issue does not arise for determination in this case, that from 19 June 2014 onwards any entitlement for interest would have to be proved by establishing what interest the judgment debtor would have tracked in the Republic of China so long as that was proved by competent evidence.⁶ While there is plainly a discretion vested in the Court to fix the rate of interest when proceeding under s 87

Judicature Act 1908, there is no authority of which I am aware which recognises authority for the New Zealand Court to review rates of interest adopted by a foreign court when computing the amount of interest to be included in a judgment of that court.

[16] Nor can it be contended that the judgment of the Fuqing Municipal People’s

Court can be impeached for error of fact or law in such a matter as computing the amount of interest payable.⁷

4. Including the additional authority of Pickett (t/a Pickett Racing) v Pulman (2004) 17 PRNZ 378 (HC).
5. Lord Collins of Mapesbury (ed) Dicey, Morris & Collins on The Conflict of Laws vol 1 (15th ed, Sweet & Maxwell, London, 2012) at 673.

⁶ Which was the process followed in Pickett, above n 4.

⁷ Lord Collins of Mapesbury, above n 5, at 720.

Recall

[17] The principles relating to such applications are well settled and were restated in the judgment of the Court of Appeal in Unison Networks Ltd v Commerce Commission:⁸

Principles for recall

[10] The principles governing recall of a judgment are well settled and are set out in Horowhenua County v Nash (No 2) [1968] NZLR 632. Wild CJ said at 633:

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[18] That statement has also been endorsed by the Supreme Court in Saxmere

Company Ltd v Wool Board Disestablishment Company Ltd.⁹

[19] Cases such as Unison make it clear that the requirements of the doctrine of finality of judgments should not be eroded by permitting parties to seek the recall of the judgment other than in certain limited circumstances. There are good reasons for insisting that apart from challenging a judgment by way of appeal or, where appropriate, by judicial review, a judgment is final. However, where the Court has reasons to conclude that the justice of the case requires, judgment will be recalled notwithstanding the importance of the principle of finality of judgments. The present case is one in which such an order could, potentially, be made.

[20] However, any application to recall a judgment must be brought prior to the judgment having been drawn up and sealed.¹⁰ Unless the judgment is able to be

⁸ _{Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [10] per Ellen France J.}

⁹ Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 122, [2010]

_{1 NZLR 76 at [2].}

¹⁰ High Court Rules, r 11.9.

recalled, there is no basis upon which the Court can re-open its consideration of the amounts for which judgment ought to have been entered in the High Court. For that reason, the question of how much the defendant owes the plaintiff, including the question of interest payable on the loan debt, is not a subject to which this Court can reconsider.

[21] The claim which the plaintiff filed sought the enforcement of the judgment of the Chinese Court. The subject matter of the claim extended to both orders concerning payment of the principal and any interest. Judgment having been entered and perfected in the proceeding before this Court, it is now too late to raise questions of recalling the judgment so that it can be modified.

[22] The position that the defendant initially took was essentially to abide the decision of this Court. However, in the further submissions which the parties filed, counsel, Mr Kashyap, took the position that in view of r 11.9 of the High Court Rules, it is now too late for the Court to recall the judgment.

[23] The objective of the recall order would be to alter the amount for which judgment was entered by adding the amount of interest which the Chinese Court ordered to the judgment sum.

[24] Judgment was sealed on 23 June 2014. I agree that it is now too late for the court to make an order setting it aside.

[25] At the same time, it is not a result that I consider satisfactory. The Chinese court which had jurisdiction in the matter came to a conclusion on the question of how much interest the defendant should pay. It ought to have been possible for the plaintiff to obtain a judgment in New Zealand which reflected the Chinese Court’s judgment in its entirety. Had the provisions of r 11.9 not governed the position, it is likely that the judgment would have been recalled and modified to reflect that position.

[26] The result is that the application for an order recalling the judgment is dismissed.

J.P. Doogue

Associate Judge