Key takeaways:
- In July 2022, the New South Wales Supreme Court of Australia ruled to enforce a judgment of a Shanghai local court, marking the fifth time that an Australian court has recognized and enforced Chinese monetary judgments(See Tianjin Yingtong Materials Co. Ltd. v Young [2022] NSWSC 943).
- The application for enforcing the Chinese judgment was made just 10 months before the expiry of the 12-year limitation period for recognition and enforcement of Chinese Judgments in Australia.
- The limitation period for recognition and enforcement of foreign judgments is governed by the law of the place of the requested court, which differs from country to country,(eg. 12 years in Australia, 2 years in China), as well illustrated in this case.
On 15 July 2022, the Supreme Court of New South Wales, in the case of Tianjin Yingtong Materials Co. Ltd. v Young [2022] NSWSC 943, ruled to enforce a civil judgment rendered by Shanghai Pudong New Area People’s Court in China.
This marks the fifth time for an Australian court, and the third time for a New South Wales Supreme Court, to recognize and enforce Chinese monetary judgments since the first of its kind was made in 2017. For more cases on Australia-China Judgments Recognition and Enforcement, please click here.
I. Case Overview
On 15 July 2022, the Supreme Court of New South Wales (the “Court”) entered its judgment in the case of Tianjin Yingtong Materials Co. Ltd. v Young [2022] NSWSC 943 (the “Australia Case”), recognizing a civil judgment rendered by Shanghai Pudong New Area People’s Court (the “Chinese Court”) on 29 Mar. 2010 (the “Pudong Case”).
We have not yet obtained the full text of the judgment for the Pudong Case, because Chinese Court Judgments Online was launched in 2014, four years after the Pudong Case judgment was rendered.
In the Pudong Case, the Plaintiff was Tianjin Yingtong Materials Co., Ltd. (Tianjin Yingtong Materials Co. Ltd.(天津市盈通物资有限公司), and the three Defendants were respectively Shanghai Runteyi Industrial Co., Ltd. (上海润特益实业有限公司), Shanghai Runheng International Trading Co., Ltd. (上海润恒国际贸易有限公司), and an individual, Ms Katherine Young ( In the Pudong Case she used her Chinese name, whose English translation was Hong Yang).
In the Australian Case, the Claimant (Plaintiff) was the Plaintiff of the Pudong Case and the Respondent (Defendant) was one of the three Defendants in the Pudong Case, i.e. Ms Katherine Young, a natural person (hereinafter referred to as the “Defendant”).
In the Australian Case, the Court upheld the claim of the Plaintiff and held that:
- The defendant should pay the plaintiff USD$1,946,707.99 and EUR€112,053.71.
- The defendant should 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.
II. Core Issues
1. Was the judgment in the Pudong Case obtained by fraud?
The Defendant argued that the judgment in the Pudong Case was obtained by fraud. Her main argument was that the judgment in the Pudong case was based on a false agreement.
In the Australian Case, the claimant rebutted such argument as follows.
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.
The Court held that:
- All of the matters relied on by the defendant were available to her at the time of the Pudong Case‘s 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.
- The Chinese Court was appraised of those very concerns about whether the agreements are based on fraud during the course of the Pudong Case proceedings and nonetheless confirmed that the agreements reflected “each party’s true intention, and shall be confirmed according to law”.
Therefore, none of the matters raised by the defendant’s defenses defeated the registration of this Chinese Judgment. The Chinese Judgment was to be registered in this Court.
2. Had the limitation period for enforcing the judgment of the Pudong Case in Australia expired?
The judgment in the Pudong Case is a first-instance judgment. The judgment was made on 29 Mar. 2010, and became final and conclusive when an appeal was initiated by the defendant (and the other Original Defendants), and was dismissed on 1 June 2010.
The Claimant did not apply to the Court for recognition and enforcement of the judgment of the Pudong Case until 9 Aug. 2021. By this time, 11 years had passed since the judgment came into effect.
If the Pudong Case judgment were to be enforced in China, the limitation period for judgment enforcement, i.e. a two-year period, would have expired in accordance with the PRC Civil Procedure Law (CPL).
But, good news for the Plaintiff: the limitation period for recognition and enforcement of foreign judgments is governed by the law of the place of the requested court, which differs from country to country,(eg. 12 years in Australia, 2 years in China), as well illustrated in this case.
The Court held that the limitation period of 12 years has not yet expired in accordance with the local laws, namely the Limitation Act 1969 (NSW).
Pursuant to Section 17 of the Limitation Act 1969 (NSW), the limitation period for action upon a foreign judgment is 12 years. It provides that:
An action on a cause of action on a judgment is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the judgment first becomes enforceable by the plaintiff or by a person through whom the plaintiff claims.
Accordingly, the Court held that the relevant limitation period had not yet expired, hence there was no time bar to the current proceeding for the enforcement of the Chinese Judgment.
III. Our Comments
This marks the fifth time for an Australian court, and the third time for a New South Wales Supreme Court, to recognize and enforce Chinese monetary judgments since the first of its kind was made in 2017.
Nowadays, many Chinese have immigrated to Australia and some transferred their assets to Australia while leaving their debts in China, which means that there are very likely to be more requests to recognize and enforce Chinese judgments in Australia.
The repeated recognition and enforcement of Chinese judgments by Australian courts will further encourage such requests to be realized.
Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
