Plaintiff v Defendant

1 The primary claim in these cases, at least at this point, is essentially an action at law for summary judgment in debt, based upon three judgments obtained in a Chinese court.

2 There are, in fact, two proceedings and four summonses (two in each proceeding) before the Court.

3 In the first proceeding, which was issued on 15 April 2015 ('the 2015 proceeding'), the plaintiff, Suzhou Haishun Investment Management Co Ltd ('Suzhou Haishun') alleges that it lent money to the defendant, Yue'e Zhao ('Ms Zhao'), under three separate loan agreements, and that this money was not repaid. Suzhou Haishun obtained judgment ('the Chinese judgments') in three proceedings against Ms Zhao in respect of the debts owed under each of the three loan agreements in the People's Court of Huqiu District, Suzhou City, Jiangsu Province ('the Suzhou Court'), a court of the People's Republic of China, on 10 October 2014. In the 2015 proceeding, Suzhou Haishun sought to enforce the Chinese judgments and pursued the underlying cause of action for outstanding debts under the three loan agreements. Ms Zhao maintained that she was not aware of the Chinese proceedings until she was served with a copy of the originating process in the 2015 proceeding.

4 In the second proceeding ('the 2018 proceeding'), Suzhou Haishun alleges that Ms Zhao has attempted, by means of various misrepresentations and transactions, to evade the consequences of the Chinese judgments. It further alleges that the relevant transactions were conducted with the connivance of her son, Chen Heng Zhao ('Mr Zhao') and ZCH Investment Pty Ltd ('ZCH'), a company which is controlled by Mr Zhao.

5 Given the time constraints, the parties agreed that the only application to be dealt with would be the summary judgment application, based on the Chinese judgments in respect of the alleged debts.

6 The remaining summonses remain on foot, pending the determination of this limited application.

7 There were a number of objections to evidence on the summary judgment application.

8 I have considered these objections and Ms Zhao's response to them.

9 Many of the affidavits have previously been admitted into evidence. In other cases, I agree with the submissions advanced on behalf of Ms Zhao that the asserted offending affidavits or sentences therein ultimately go to the weight of the evidence to be determined by this Court.

10 In circumstances of a summary judgment application I do not uphold any of the objections made.

11 On 18 April 2018, John Dixon J made an order in the 2015 proceeding, prohibiting Ms Zhao, Mr Zhao and ZCH from removing from Australia, or in any way disposing of, dealing with or diminishing the value of any of their assets in Australia up to the unencumbered value of $8,000,000.

12 It is common ground between the parties that, during the relevant period, Ms Zhao was the legal representative of Suzhou Bolun Technology Co Ltd ('Bolun'), and was present in the People's Republic of China. Beyond this, the parties' accounts of the facts underlying the dispute diverge entirely.

The 2015 proceeding: Suzhou Haishun's account

13 Suzhou Haishun states that it is, and was at all material times, a company incorporated in the People's Republic of China, conducting business in the Huqiu District of Suzhou City, Jiangsu Province.

14 It alleges that it entered into three loan agreements with Ms Zhao in 2013 (collectively, 'the loan agreements'):

(a) On or about 23 July 2013, Suzhou Haishun agreed to lend Ms Zhao RMB 10,000,000, at an interest rate of 2.1 per cent per month, calculated daily, with the principal and interest to be repaid on or before 22 October 2013 ('the First Loan Agreement');

(b) On or about 15 October 2013, Suzhou Haishun agreed to lend Ms Zhao RMB 2,000,000, at an interest rate of 2.4 per cent per month, calculated daily, with the principal and interest to be repaid on or before 30 December 2013 ('the Second Loan Agreement'); and

(c) On or about 23 October 2013, Suzhou Haishun agreed to lend Ms Zhao RMB 8,000,000, at an interest rate of 2.4 per cent per month, calculated daily, with the principal and interest to be repaid on or before 30 December 2013 ('the Third Loan Agreement').

15 It further alleges that it made several advances to Ms Zhao under the loan agreements:

(a) On or about 23 July 2013, Suzhou Haishun deposited the loan money contemplated in the First Loan Agreement into a bank account nominated by Ms Zhao ('the First Advance');

(b) On or about 15 October 2013, Suzhou Haishun deposited the loan money contemplated in the Second Loan Agreement into a bank account nominated by Ms Zhao ('the Second Advance'); and

(c) On or about 23 October 2013, Suzhou Haishun deposited the loan money contemplated in the Third Loan Agreement into a bank account nominated by Ms Zhao ('the Third Advance').

16 To the extent that the existence of the loan agreements was implied by conduct, this conduct was said to consist of the following:

(a) Suzhou Haishun made advances in respect of the loan agreements to a bank account nominated by Ms Zhao;[1]

(b) Ms Zhao acknowledged, on or about the dates of each of the advances, that she had received those advances; and

(c) Bolun delivered to Suzhou Haishun a letter guaranteeing the performance of Ms Zhao's obligations under the loan agreements on or about the dates that each of those loan agreements was concluded.

17 There is no dispute between the parties that the recipient of the funds the subject of the loan agreements was not Ms Zhao, but rather the Luzhi Yisheng Mould Factory.

18 Suzhou Haishun alleges that Ms Zhao has not repaid any of the principal or interest owing under the loan agreements.

19 On 7 May 2014, Suzhou Haishun commenced legal proceedings against Ms Zhao in the Suzhou Court, seeking the repayment of the sums alleged to be owing under the loan agreements. On 10 October 2014, the Suzhou Court delivered judgment in favour of Suzhou Haishun in each of three proceedings (each proceeding related to one of the alleged loan agreements).

20 Ms Zhao gives a very different account of the key events. She maintains that she did not borrow any of the sums that are the subject of the loan agreements. Her involvement in the transaction, she asserts, was limited to introducing Xiaping Xiao ('Ms Xiao'), an agent of Suzhou Haishun, to Weiying Zhang ('Ms Zhang'), who was the owner or controller of the Luzhi Yisheng Mould Factory.

21 Ms Zhao alleges that Ms Zhang borrowed money from Suzhou Haishun, before the assets of the Luzhi Yisheng Mould Factory were confiscated in March 2014 by another party that had lent money to Ms Zhang.

22 Further, Ms Zhao says that on 26 April 2014, Ms Xiao attended Ms Zhao's office at the premises of Bolun with 8 men. During this incident, Ms Xiao and 4 of the men in attendance prevented Ms Zhao from leaving her office until she signed ten backdated documents, which include the loan agreements that Suzhou Haishun relies upon in this proceeding.

23 Thus, Ms Zhao alleges that the loan agreements are a sham, that her signature was obtained by duress, and that the funds supposedly lent by Suzhou Haishun to Ms Zhao were actually lent to, or at the direction of, Ms Zhang.

The 2018 proceeding: Suzhou Haishun's account

24 In setting out its claim in the 2018 proceeding, Suzhou Haishun repeats the facts alleged in the 2015 proceeding.

25 It further alleges that Ms Zhao had been acquainted with Ms Xiao since 2007, and that during this time Ms Xiao knew Ms Zhao to be the proprietor of a substantial industrial concern in Suzhou, employing hundreds of workers.

26 It also alleges that Ms Zhao, by words and conduct at the time that the loan agreements were entered into, encouraged Suzhou Haishun through Ms Xiao to believe that:

(a) The loans were intended to be used to resolve short-term cash flow difficulties experienced by Bolun, until it could obtain finance from its usual bankers ('the first representation');

(b) Ms Zhao was 'a person of financial substance who was merely experiencing...a temporary cash flow embarrassment' ('the second representation'); and

(c) Bolun was a substantial industrial concern and Ms Zhao intended that it would continue as such ('the third representation').

27 It alleges that at the time that Ms Zhao made these statements, she knew that Bolun could not repay its creditors or obtain finance to do so, that her own financial position in China was hopeless, and that she intended to abandon her business interests in China and leave the country permanently.

28 Suzhou Haishun further alleges that Ms Zhao made a series of representations to Ms Xiao, intended to delay the commencement of proceedings against Ms Zhao to recover the debts that are the subject of the loan agreements. It maintains that it (by Ms Xiao) informed Ms Zhao on 26 April 2014 that it intended to sue her to recover the loan debts, and that Ms Zhao left China with no intention of returning on 2 May 2014.

(a) On 26 April 2014, Ms Zhao sent Ms Xiao text messages in which Ms Zhao represented that she would deal with the outstanding debts seriously and in good faith. This representation was false, as it was made at a time when Ms Zhao intended to leave China and not return;

(b) On 30 April 2014 and 1 May 2014, Ms Zhao sent Ms Xiao text messages to the effect that she would repay the debts the subject of the loan agreements. This representation was false as Ms Zhao had no intention to repay the debts, and intended to leave China permanently;

(c) On 6 May 2014, Ms Zhao sent Ms Xiao text messages, in which Ms Zhao claimed that she was unwell and needed time to recuperate before she could repay the debts the subject of the loan agreements. This representation was false, as Ms Zhao neither intended to repay those debts nor return to China; and

(d) On 7 May 2014, Ms Zhao sent Ms Xiao text messages in which she expanded on her previous claim, saying she was seeking psychiatric treatment in Australia for a short time only, and would return the 'loan debt'. This representation was also false.

30 Suzhou Haishun maintains that it initiated proceedings against Ms Zhao in the Suzhou Court on 7 May 2014, and effected service on Bolun at its usual place of business. I will return to the question of service later. It alleges that a male employee of Bolun attended the hearing of the proceeding at the Suzhou Court on 9 June 2014, with the knowledge and approval of Ms Zhao, and informed the Court that Ms Zhao was unable to attend the hearing as she was suffering from depression. It alleges that this representation was untrue.

31 There was, it appears, an attendance before Judge Wan of the Suzhou Court as Suzhou Haishun contends, on behalf or at least as a representative, of Ms Zhao.

32 Ms Zhao contests this. As was submitted by Ms Zhao:

MR SILVER: You were taken to a discussion between an unidentified man and Judge Wan or Wan.

HER HONOUR: Yes, I have that. Judge Wan. Yes.

MR SILVER: And you've been taken to this by the plaintiff, presumably to show well, someone's turned up and so it - - -

HER HONOUR: Yes.

MR SILVER: - - - casts doubt on whether the plaintiff knew or not - the defendant knew or not about the proceedings.

HER HONOUR: Yes.

MR SILVER: or indeed attended. This could of course in my submission give you no satisfaction. It gave the judge at the time no satisfaction. There's no documents indicating this person who is unidentified by everyone had any authority on behalf of the company or the individual. As the judge said, "there's no documents indicating that you have, Zhao Yue'e's or Suzhou Bolun Technology Co Ltd's power of attorney".

This is an - this is a description of what was observed by the - by this solicitor. We don't know who this person is. For all the court knows, and I'm not making a positive allegation to this effect, for all you know, the plaintiff sent someone along to create a façade that we knew about this and were there. I'm not making that allegation, I certainly don't suggest it, I don't have a basis to do so.

HER HONOUR: You're theorising.

MR SILVER: Yes. But, Your Honour could have no idea and it couldn't strengthen - this chapter of my friends' submission could not strengthen, Your Honour, that we knew about it and we're somehow trying to be tricky.

HER HONOUR: This unknown male, however, does claim that he knows the defendant and she's the boss and

MR SILVER: All information within the plaintiff's knowledge.

HER HONOUR: Yes.

33 On 9 June 2014, the Suzhou Court determined that notice should be given to Ms Zhao by means of a public notice, which was published on 9 July 2014 in the People's Court Daily, setting out the details of the hearing (listed for 10 October 2014).

34 Suzhou Haishun alleges that Ms Zhao, at various points with the assistance of Mr Zhao and ZCH, sought to delay, hinder or defeat the enforcement of the Chinese judgments in Victoria by a number of means. It alleges that Ms Zhao intended to hinder or defeat the claims of her creditors by transferring property to her son Mr Zhao, and to ZCH, which was controlled by her son:

(a) On or about 10 October 2014, after the Suzhou Court delivered its judgments in respect of each of the loan agreements, Ms Zhao listed the property located at 4703/1 Freshwater Place, Southbank, Victoria ('the Freshwater Place property') for sale. The property was sold on or about 9 April 2015.

(b) On or about 21 April 2015, Ms Zhao listed the property located at 1912/39 Coventry Street, Southbank, Victoria ('the Coventry Street property') for sale.

(c) On or about 22 October 2016, Ms Zhao caused ZCH to enter into a contract to purchase the property located at 1 Ottawa Avenue, Blackburn, Victoria ('the Ottawa Avenue property'), for nominal or no consideration. Suzhou Haishun alleges that Ms Zhao was the person who actually financed this purchase.

(d) On or about 22 October 2016, Ms Zhao entered into, or caused, or directed, or counselled, or assisted Mr Zhao to purchase the property located at 8 Cluney Court, Blackburn South, Victoria ('the Cluney Street property')

(e) On or about 9 November 2016, Ms Zhao transferred 50 shares in ZCH ('the ZCH shares') to Mr Zhao.

35 Suzhou Haishun further alleges that the first defence filed by Ms Zhao in proceeding number S CI 2015 01669 contained a number of allegations that were made in bad faith and vexatious, and were intended to improperly hinder, delay or defeat the proceedings.

36 Ms Zhao denies most of the allegations in Suzhou Haishun's statement of claim. She further denies making any representation that her company was experiencing temporary cash flow problems.

37 Ms Zhao admits that she had no intention to pay Suzhou Haishun, or to obtain a loan to do so, and that she intended to leave China and not return. However, this admission must be understood in the context of her denial that she is in any way indebted to Suzhou Haishun.

38 She further admits that she signed authorities with Real Connection Pty Ltd to sell the Freshwater Place property and the Coventry Street property. However, she denies all of the other transactions involving Australian properties that Suzhou Haishun alleges. Ms Zhao does not plead in respect of the transactions involving the Ottawa Avenue property and the Cluney Court property, as she maintains that they do not involve any allegation against her.

The 2018 proceeding: Mr Zhao and ZCH's account

39 Mr Zhao and ZCH substantially deny the allegations made by Suzhou Haishun, save that they admit that Mr Zhao was allocated 50 shares in ZCH, and that he purchased the Ottawa Avenue property and the Cluney Court property.

The text message exchanges between Ms Zhao and Ms Xiao

40 Due to their significance in this proceeding, it is worth extracting at length a number of text messages between Ms Zhao and Ms Xiao, that were relied upon by Suzhou Haishun. The messages were exchanged shortly before Ms Zhao departed China for Australia. The original Chinese messages and their English translations were tendered as an exhibit to the affidavit of Ms Xiao made on 10 October 2017. On their face, the messages clearly contradict Ms Zhao's claim that she did not regard the debts as being due and payable.

41 Relevant sections of the translated exchanges are extracted below (the sender was Ms Xiao, and the recipient Ms Zhao):

Pretty sister, you are making me really sad when you don't pick up my phone calls. Why are you treating someone who has whole-heartedly given everything for you, and given their family and daughters happiness to you. Why are there not any explanations, can you even live with yourself, hopefully pretty sister doesn't let down my sincerity, waiting for you to give me a clear debt repayment plan at 4 o'clock today! 25 million! It's so many innocent families' fates that are held in your control, you burnt incense and prayed to Buddha for more than a decade I believe that you have a compassionate heart, helping me is like helping yourself!

Ok, pretty sister call me back as soon as possible.

42 A further exchange took place over the course of the next two days:

Pretty sister, you must pay 400,000RMB between today and the 5th May, Mr Zhou's position is very firm, no matter how difficult you need to find a solution, this is what you have to do!!

This isn't a problem that can be solved just because you know!

Pretty sister, you must pay 400,000RMB between today and the 5th May, Mr Zhou's position is very firm, no matter how difficult you need to find a solution, this is what you have to do!!

Haven't gone to borrow today as today is 1st of May, will go out to borrow tomorrow.

43 For completeness, I will set out the nature of the summonses filed in the 2015 proceeding and the 2018 proceeding.

Suzhou Haishun's summons in the 2015 proceeding

44 By summons filed 25 May 2018, Suzhou Haishun seeks:

(a) The striking out of numerous paragraphs of Ms Zhao's defence, pursuant to the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Supreme Court Rules') reg 23.02;

(b) Judgment for Suzhou Haishun on the claims in its further amended statement of claim, pursuant to the Supreme Court Rules reg 23.01(2) or 35.04;

(c) Alternatively, summary judgment for Suzhou Haishun on the claims in its further amended statement of claim, pursuant to the Civil Procedure Act 2010 (Vic) ss 61 and 63 ('Civil Procedure Act'), and the Supreme Court Rules regs 22.03-22.15;

(d) Alternatively, directions pursuant to the Supreme Court Rules regs 34.1, 34.2 and 34.3, requiring Ms Zhao to:

(i) Admit the existence of the Chinese judgments, admit that the Suzhou Court had international jurisdiction, admit that Suzhou Haishun is the judgment creditor and Ms Zhao is the judgment debtor under those judgments, and admit that the judgments are final and enforceable;

(ii) Plead specifically the matter that Ms Zhao relies on as a denial of natural justice in respect of the Chinese proceedings, and the Chinese law relied on by Ms Zhao to support that defence; and

(iii) Omit all extraneous and irrelevant material from her defence;

(e) Indemnity costs; and

(f) Such further orders as the Court shall make.

(a) Leave to sell the Coventry Street property, at public auction, according to certain terms set out in her summons; and

(b) Leave to apply the proceeds of the sale of the property as follows and in the following priority:

(i) The payment of the real estate agent's commission or fee, and any other expenses of the sale.

(ii) The discharge of any registered encumbrance on the property.

(iii) The payment of any outstanding rates, charges, taxes and imposts that have not already been paid by Ms Zhao.

(iv) The payment of the reasonable legal costs associated with the sale and conveyance of the property.

(v) The net balance to be paid into Ms Zhao's solicitor's trust account, and to remain subject to the freezing order made by John Dixon J;

(c) That Ms Zhao be permitted to receive, from the net balance of the sale of the property, the following sums:

(i) $32,500 to pay debts owed by Ms Zhao to Yidong Liu;

(ii) $20,000 to pay debts owed by Ms Zhao to Shangde Zhang;

(iii) Up to $1000 per week for living expenses; and

(iv) Up to $50,000 for reasonable legal expenses; and

(d) That Suzhou Haishun pay Ms Zhao's costs of the application.

Suzhou Haishun's summons in the 2018 proceeding

46 By summons filed 24 May 2018, Suzhou Haishun seeks:

(a) The striking out of numerous parts of the defendants' defence, pursuant to the Supreme Court Rules reg 23.02;

(b) Judgment for Suzhou Haishun on the claims made in its statement of claim, pursuant to the Supreme Court Rules reg 23.01(2) or 35.04;

(c) Alternatively, summary judgment for Suzhou Haishun on the claims in its statement of claim, pursuant to the Civil Procedure Act ss 61 and 63, and the Supreme Court Rules regs 22.03-22.15;

(d) Alternatively, directions pursuant to the Supreme Court Rules regs 34.1, 34.2 and 34.3, requiring the defendants to:

(i) Admit the judgments alleged by the further amended statement of claim, that the Suzhou Court had jurisdiction in the international sense to entertain, and give judgment in, the Chinese proceedings, admit that Suzhou Haishun is the judgment creditor in respect of those proceedings and Ms Zhao is the judgment debtor, and admit that those judgments are final and enforceable;

(ii) Plead specifically the matter they rely on as a denial of substantial justice in the Chinese proceedings, the basis therefor, and the Chinese law relied on by the defendants to support that defence;

(iii) Plead specifically the basis of each denial in their defence; and

(iv) Omit all extraneous and irrelevant material from their defence;

(e) Indemnity costs; and

(f) Such further orders as the Court shall make.

The defendants' summons in the 2018 proceeding

47 By summons filed 19 April 2018, the defendants seek:

(a) That Suzhou Haishun provide security for the defendants' costs incidental to the proceeding (including mediation) in the amount of $59,875 or such other amount and in such form as the Court sees fit, pursuant to the Supreme Court Rules reg 62.02(1), Corporations Act 2001 (Cth) s 1335(1) and the inherent jurisdiction of the Court;

(b) The proceeding be stayed until such security is given; and

(c) Costs.

48 As observed, on 7 May 2014, Suzhou Haishun commenced legal proceedings against Ms Zhao and Bolun in the Suzhou Court, seeking repayment of the money loaned and advanced to Ms Zhao under the loan agreements. There were three proceedings in all, relating to the First, Second and Third Loan Agreements respectively.

49 On 10 October 2014, the Suzhou Court delivered judgment in favour of Suzhou Haishun in the proceedings. Their Honours Chief Judge Xu Xinghua and Judge Wan Yuming found that Ms Zhao was a resident of China and had a registered domicile in Suzhou, and that she received summonses notifying her of the proceedings. They further found that Ms Zhao had entered into the loan agreements, had received advances under those agreements, and had failed to make repayments when they were due and payable. They noted that neither Ms Zhao nor any representative of Bolun attended the hearing, despite having received summonses, and that no justification was given for this absence.

50 The court ordered Ms Zhao to pay the following sums to Suzhou Haishun:

(a) In the first proceeding (which related to the First Loan Agreement), RMB 10,000,000 in respect of the First Advance, and RMB 566,222.22, being interest payable on the First Advance as of 10 October 2014.

(b) In the second proceeding (which related to the Second Loan Agreement), RMB 2,000,000 in respect of the Second Advance, and RMB 23,333.33, being interest payable on the Second Advance as of 10 October 2014.

(c) In the third proceeding (which related to the Third Loan Agreement), RMB 8,000,000 in respect of the Third Advance, and RMB 83,377.78, being interest payable on the Third Advance as of 10 October 2014.

51 There remains an issue between the parties as to the adequacy of service of the Chinese proceedings on Ms Zhao, a question that must be determined according to Chinese law.

52 It was common ground that it was a matter for the Suzhou Court to effect service on Ms Zhao according to its procedures.

53 Ms Zhao was, it was submitted, registered to an address in China under the hukou system (China's system of household registration). In addition, she possessed a Chinese identity card and held a Chinese passport.

54 Service was attempted on Ms Zhao's registered address according to her identity card, however, the documents were returned. Suzhou Haishun also made inquiries of the Chinese Public Security Bureau. Subsequently, the Suzhou Court publicly advertised the proceedings.

55 Suzhou Haishun submits that this advertisement was good service according to Chinese law and, even if it was not, that this Court would not be deprived of jurisdiction or, as it was put:

Nor would it make the proceedings unfair in circumstances where the defendant was within the court's jurisdiction, was obliged under the - had provided her citizens (sic) identity card... [w]as obliged to have a - an official residence under the law of China and was subject to the rules of procedure of the law of China that were followed.

56 Ms Zhao, not surprisingly, disagrees. She submits that she was not aware of the proceedings at all until the 2015 proceeding was instituted. This is a matter of dispute between the parties.

57 In November 2014, Ms Xia Ping Xiao ('Ms Xiao') of Suzhou Haishun came to Australia in an effort, it was said, to locate Ms Zhao. She was successful and located her within two days at a Chinese restaurant. Ms Zhao throws doubt on such a coincidence and suggests that this demonstrates that Suzhou Haishun knew all along how to locate her.

58 The evidence as to Chinese law, as it was, was set out in an affidavit of Zhang Yan, affirmed 10 October 2017 and filed 23 November 2017. Zhang Yan is an admitted legal practitioner in China, having practised in that jurisdiction since 2013. No expert evidence was filed on behalf of Ms Zhao, although submissions were made in relation to the question of domicile.

59 Zhang Yan's evidence is that, quite apart from issues of service, the three Chinese judgments were handed down and subsequently advertised on 5 November 2014. He deposes that once Ms Zhao knew about the proceedings, she had sixty days to return to China to petition against the Chinese judgments. She did not do so.

60 Zhang Yan was in attendance at the Suzhou Court at the first hearing before Judge Wan on 9 June 2014. He deposes to the fact that a man who described himself as an employee of Bolun appeared before Judge Wan. It is to be noted that Bolun was also sued in the Chinese proceedings as guarantor of Ms Zhao's loans. The man was asked by Judge Wan whether he knew Ms Zhao, to which he responded that she was 'the boss'.

61 Whilst the gentleman (who remains unidentified) said, in answer to questions from Judge Wan, that he did not hold Ms Zhao's power of attorney, he nevertheless indicated that he had with him documents verifying a diagnosis of depression of Ms Zhao, and indicated that this was the reason that she could not attend court.

62 Judge Wan indicated that because documents sent to Ms Zhao's registered address were returned, service would be conducted by means of public advertisement.

63 The question remains for this Court whether service was effected in accordance with Chinese law and, even if it was, whether there was a denial of natural justice in that Ms Zhao submits that she was not aware of the Chinese proceedings until after judgments were entered.

64 Although I am satisfied that the numerous attempts made to locate Ms Zhao's address and contact details were thorough, ought the conclusion be drawn that there was a denial of natural justice, given her evidence that she remained unaware of the Chinese proceedings until the start of the 2015 proceeding?

65 In my opinion, no. I have formed this view for the following reasons:

(a) It appears that all reasonable attempts were made to locate an address for service of Ms Zhao in China through various sources;

(b) There was no credible evidence that Suzhou Haishun knew of Ms Zhao's address in Australia, notwithstanding that it may have been aware of Ms Zhao's connection with Australia and even that she had not been in China for some time;

(c) The Bolun representative who attended the Suzhou Court before Judge Wan had clearly been in contact with Ms Zhao, having informed the court of her medical condition and informing the court that he held supporting documentation. Accordingly, Ms Zhao must have been aware of the proceedings since their inception;

(d) According to the expert evidence, article 92 of the Chinese Civil Procedure Law permits service of process by public announcement when the whereabouts of the person to be served is unknown, or service of process is not possible by other means set out in the relevant section of that law. Given the attempts at service undertaken, I do not consider, on the evidence, that there was any denial of natural justice in effecting service by public announcement as contemplated by article 92.

66 Both parties made submissions in relation to the significance of the domicile of Ms Zhao at the time of service of the Chinese proceedings.

67 The question of 'domicile' under Chinese law is a question of fact. As I have noted, no expert evidence was advanced by Ms Zhao as to this issue. However, this, in itself, is no barrier to the Court considering extraneous material.[2]

68 Ms Zhao contends that this question is one in respect of which there is a genuine dispute, that the Court should hear expert evidence in relation to it, and accordingly, it ought not be determined on a summary basis.

69 In contrast, Suzhou Haishun submits that, by virtue of Ms Zhao's citizenship, the fact that she maintained a registered address in China and travelled on a Chinese passport meant that, in relation to the question of domicile, it was irrelevant that Ms Zhao was not in China at the time proceedings were issued or the judgments were handed down.

70 The evidence filed on behalf of Suzhou Haishun by a qualified Chinese lawyer (Zhang Yan) is to the effect that:

(a) all Chinese citizens are required to have a registered address (known as the hukou system);

(b) it is not permitted for a Chinese citizen to have no hukou residence; and

(c) it is not possible under the law of China for a Chinese citizen to have no domicile in China.

71 As deposed by Zhang Yan in relation to the General Principles of the Civil Law of the People's Republic of China:

The domicile of a citizen shall be the place where his residence is registered; if his habitual residence is not the same as his domicile, his habitual residence shall be regarded as his domicile."

In my opinion this means that the place of habitual residence shall be regarded as the citizen's domicile, as well as her registered "Hukou" residence and not instead of it. In my experience, this is uniformly how the law is understood and applied by Judges and lawyers in China. There are many cases where a person is sued at this Hukou place of residence and not at his place of habitual residence. This is normal.

72 Ms Zhao submits that there remains considerable doubt under Chinese law whether her registered address in China is her domicile, and how that may affect the judgment of this Court.

73 The Court's attention was drawn to the requirement under Chinese law for a company to register the name and domicile of a member of the company. However, Ms Zhao contended that there was a real issue for this Court to determine, based on material put before the Court, whether the Court ought to rely on the affidavit of Zhang Yan as to this issue. Excerpts from LexisNexis were put before the Court in relation to this issue.

74 In short, Bolun was required to register Ms Zhao's name and domicile. It should be remembered that Ms Zhao was the sole shareholder and legal representative of Bolun.

75 I was taken to a number of provisions of the Chinese regulations. Having considered them, it seems, based on their plain and ordinary meaning, that these expressions seem to contemplate the situation where Chinese citizens move within China such that they may objectively come under the jurisdiction of one or more of the People's Courts.

76 Based on the evidence of Zhang Yan, these provisions do not, to my mind, strip Chinese courts of the ability to serve process where the citizen is absent from the jurisdiction, provided that its own procedures are followed.

77 Cases such as these are necessarily vexed. It is a cornerstone of our justice system that litigants are aware of the case made against them, however, to be balanced against this is whether the laws of a foreign sovereign state are complied with and whether or not they offend this jurisdiction's values as to the fair and reasonable administration of justice.

78 Whilst submissions were put from the bar table on behalf of Ms Zhao, as I have observed, no expert evidence was proffered. Ms Zhao had the opportunity to do so.

79 I have considered the provisions and the extracts from texts put before the Court for my consideration.

80 I am not convinced that, given the other matters to which I will refer, the circumstances warrant the conclusion that this matter should proceed to trial solely on the issue of whether Ms Zhao's domicile may be said to have been in China at the relevant time.

81 Ms Zhao was, in my opinion, entirely aware of the institution of the Chinese proceedings, was a full Chinese citizen and thus subject to their laws, and contractually submitted to the jurisdiction.

82 This Court will always defend the rights of individuals in the face of manifest injustice or unfairness. I do not consider, given all the circumstances, that this is such a case.

83 In their oft-cited decision in Lysaght v Blanalko, their Honours Warren CJ and Nettle JA summarised the relevant test in applications for summary judgment under the Civil Procedure Act s 63:

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125;

(c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[3]

84 As for the burden that applies to defendants who seek to refute a plaintiff's claim for summary judgment, the Victorian Court of Appeal stated the following in Hausman v Abigroup:

A judge faced with an application for summary judgment should not be required to trawl through the defendant's material in an effort to see whether there can be constructed from that material an answer to the plaintiff's claim. It must be for the defendant to point to some material, whether legal or factual, that provides an arguable response to that claim. That is so even if it is the plaintiff who must ultimately discharge the burden of persuading the judge that there is no issue that warrants trial, and that summary judgment should therefore be granted.[4]

85 Thus, the defendant bears the onus of establishing any defence that it seeks to rely upon, while the plaintiff bears the onus of establishing that summary judgment ought to be given. These burdens are independent of one another.

86 As held by Kyrou and McLeish JJA of the Victorian Court of Appeal in the recent decision of Re Tang, pursuant to the Evidence Act 2008 s 174, it is not necessary for expert evidence to be adduced when the content of a foreign law is being proven.[5] Their Honours cautioned that in many cases, 'strict proof of foreign law, through expert evidence, may be required', due to the risk of error or even abuse.[6] However, as the trial judge had conducted her own research on the applicable law, and found that the relevant Chinese legislation matched the text adduced by the applicant, it was open to her to make a finding as to the content of the foreign law.[7]

87 It should be noted that in Re Tang, as in this case, the relevant foreign law was adduced via an extract from the AsianLII database.[8]

88 In these proceedings, evidence of foreign law was chiefly relevant to the questions of whether, under the law of the People's Republic of China, service was validly effected on Ms Zhao.

89 Foreign judgments may be enforced in Australia either at common law or through the combined operation of the Foreign Judgments Act 1991 (Cth) and the Foreign Judgments Regulations 1992 (Cth) ('the Regulations'). The statutory regime applies where a country has been designated as a jurisdiction of substantial reciprocity under the Regulations. The People's Republic of China has not been so designated.[9]

90 Thus, with the exception of judgments issued by certain courts located in the Hong Kong Special Administrative Region,[10] the judgments of Chinese courts are not enforceable in Australia through statutory means.

91 However, decisions of Chinese courts may be enforceable in Australia via the common law procedure for enforcement of foreign judgments. The common law principles applicable to the recognition and enforcement of foreign judgments have been summarised in Nygh's Conflict of Laws:

To entitle a foreign judgment to recognition at common law, four conditions must be satisfied: (a) the foreign court must have exercised a jurisdiction which Australian courts will recognise; (b) the foreign judgment must be final and conclusive; (c) there must be an identity of parties; and (d) if based on judgment in personam, the judgment must be for a fixed debt.[11]

92 The onus rests on the party seeking to enforce the foreign judgment to establish these grounds. Once they are established, however, the judgment is prima facie enforceable as a valid obligation.[12]

93 Notwithstanding the satisfaction of the above elements, the forum court may still refuse to enforce the foreign judgment in limited circumstances. Grounds for refusing to recognise or enforce a foreign judgment in an Australian jurisdiction include:

(a) Where granting enforcement of the foreign judgment would be contrary to Australian public policy.[13] This includes judgments obtained by improper means, such as duress[14] or undue influence.[15]

(b) Where the foreign judgment was obtained by fraud (including equitable fraud)[16] by the parties or by the foreign court;[17]

(c) Where the foreign judgment is penal or a judgment for a revenue debt;[18] and

(d) Where enforcement of the decision would amount to a denial of natural justice.[19]

94 It falls to the defendant to establish any of the above defences to enforcement, once the plaintiff has established the prima facie enforceability of the judgment.[20] It should be noted that a defendant cannot challenge the inherent merits of the foreign decision by alleging that the foreign court made a mistake of fact or law.[21] Moreover, a defendant cannot raise any defence in an enforcement proceeding that was, or could have been, raised in the foreign proceeding.[22]

When is a foreign law, or a claim based on a foreign law, penal in nature?

95 It is a longstanding principle, inherited from the English common law, that Australian courts will not enforce a foreign penalty.[23] As for what constitutes a penalty, the decision of Watson LJ in Huntington v Attrill remains the authoritative statement:

[N]o proceeding, even in the shape of a civil suit, which has for its object the enforcement by the State, whether directly or indirectly, of punishment imposed for such breaches by the lex fori, ought to be admitted in the Courts of any other country.[24]

A proceeding, in order to come within the scope of the rule, must be in the nature of a suit in favour of the State whose law has been infringed. All the provisions of Municipal Statutes for the regulation of trade and trading companies are presumably enacted in the interest and for the benefit of the community at large; and persons who violate these provisions are, in a certain sense, offenders against the State law, as well as against individuals who may be injured by their misconduct. But foreign tribunals do not regard these violations of statute law as offences against the State, unless their vindication rests with the State itself, or with the community which it represents. Penalties may be attached to them, but that circumstance will not bring them within the rule, except in cases where these penalties are recoverable at the instance of the State, or of an official duly authorized to prosecute on its behalf, or of a member of the public in the character of a common informer.[25]

97 It is clear, therefore, that for a remedy imposed by a foreign court to be a penalty, it must have some public element. As for where the distinction lies between remedies that are private in nature, and those that have a public element, some guidance is provided by two of the propositions drawn from the authorities by Purchas LJ in United States of America v Inkley:

(2) ... regard will be had to the attitude adopted by the courts in the foreign jurisdiction which will always receive serious attention and may on occasions be decisive; (3) ... the category of the right of action, i.e. whether public or private, will depend on the party in whose favour it is created, on the purpose of the law or enactment in the foreign state on which it is based and on the general context of the case as a whole.[26]

98 On the basis of this distinction, an Australian court (in Benefit Strategies Group Inc v Prider) has previously decided that an award of damages by a United States court, despite being described as 'punitive damages', was not an unenforceable foreign penalty, as it was awarded in recognition of the plaintiff's contumelious disregard for the private rights of the defendant, and did not contain any 'public element'.[27]

99 Against this should be balanced the decision of Bergin J in Schnabel v Yung Lui, in which her Honour declined to enforce an award of punitive damages by a United States court on the basis that the award was intended to 'penalise the first defendant and to deter others from failing to comply with the court's orders'.[28] As such, the award was imposed for public purposes.

100 In Benefit Strategies Group, Bleby J distinguished the decision of Bergin J in Schnabel on the basis that the award in the latter case had a 'public connotation', being based on the defendant's failure to comply with an order of a United States court, rather than in vindication of the plaintiff's rights.[29] The distinction is a cogent one. However, with respect to Bleby J, it may be difficult in practice to ascertain the purpose behind remedies ordered in foreign judgments, especially where the reasons given by the foreign court are terse.

101 In any event, if an Australian court finds that part of a foreign judgment is penal in nature, or relates to a law that is penal in nature, this does not necessarily render the judgment unenforceable in its entirety. If that part of the claims or damages or interest that is penal in nature can be severed from the judgment, the remainder can be enforced. Indeed, this was the approach of Bleby J in Benefit Strategies Group:

In this case, given the form of the judgment, it is practicable, if necessary, to sever the award of punitive damages from the balance of the judgment and to include in the award, as was done here, the component of the judgment which relates only to compensatory damages and costs.[30]

Does the People's Court of Suzhou have jurisdiction 'in the international sense'?

102 Various bases were put forward by Suzhou Haishun for finding that Ms Zhao was subject to the jurisdiction of the Suzhou Court at the time of the Chinese proceedings. It was disputed between the parties whether, at the relevant times, Ms Zhao was a citizen of the People's Republic of China, had a registered residence in that jurisdiction, or had some other substantial connection with China such as might provide a basis for international jurisdiction.

103 Two relevant extracts of Chinese law were tendered by Suzhou Haishun in support of this point. As discussed above,[31] it is open to the Court in certain circumstances to make a finding as to the content of foreign law without resort to expert evidence. The first extract was a print-out from the LexisNexis online service, stating that limited liability companies in China must register the names and domiciles of their shareholders. The second extract was from AsianLII, and set out service requirements in Chinese civil litigation. In addition, the affidavit of Yan Zhang, a practising lawyer in the People's Republic of China, sets out excerpts from the Chinese Civil Procedure Law which regulates the procedure for filing and service of court process in the People's Court. Suzhou Haishun argued that these documents, in conjunction with evidence that Ms Zhao was a member of Bolun, and evidence that it served Bolun at its headquarters, demonstrated that Ms Zhao was served according to Chinese law and had notice of the Chinese proceedings.

104 The loan agreements relied on by Suzhou Haishun all contain clauses by which the parties agree that the Suzhou Court will have jurisdiction over disputes arising under the respective loan agreements.

105 The translated version of article 4.1 of the First Loan Agreement states:

Disputes arising during fulfilment of the contract shall be settled by both parties upon negotiation. In case the negotiation fails, lawsuit [sic] can be filed to the court with a jurisdiction at the place the contract was executed.

106 The translated version of clause 6 of the Second Loan Agreement relevantly states:

In case of economic disputes, Party B agrees that Party A may file for a lawsuit in the People's Court with jurisdiction in Suzhou City.

107 At the head of the Second Loan Agreement, 'Party A (the Loaner)' is defined as 'Suzhou Haishun Investment Management Co Ltd', and 'Party B (the Loanee)' [sic] is defined as Zhao Yue'e.

108 The translated version of clause 6 of the Third Loan Agreement is identical to clause 6 of the Second Loan Agreement.

109 This matter has come before the Court as a summary judgment application based on the back of the Chinese judgments.

110 Even if I am wrong in relation to the issues of domicile or service, nevertheless on the evidence before me I do not consider that there is any real prospects of success for Ms Zhao on a summary judgment application in this Court.

111 I do not consider that there is any substantial injustice or unfairness in granting summary judgment, although exercised with caution, in the circumstances of this case.

112 I do not consider that there is any basis for the community to lose confidence in the administration of justice, nor do I consider it a denial of natural justice for summary judgment to be granted in this case. It is an inevitable decision that if an individual is subject to and submits to the laws and procedures of a foreign jurisdiction then, unless it offends this Court's principles of justice or fairness encapsulated in the rule of law, then it is appropriate for this Court to have regard to the decisions of that foreign jurisdiction as the basis to make an order for summary judgment.

113 In my opinion, Suzhou Haishun has made out its case in relation to its summary judgment application insofar as it relates to the enforcement of outstanding debts under the loan agreements. I do not consider, based on the facts and matters set out above, that Ms Zhao has any real prospects of success in defending a judgment in relation to the loan agreements.

114 The Court has reached this decision for the following reasons:

(1) It was common ground between the parties that all three loan agreements were signed in Suzhou City, Jiangsu Province, in the People's Republic of China. There was, as has been noted, no dispute that each of the loan agreements contained clauses to the effect that the Suzhou Court had jurisdiction over disputes arising from those loan agreements. Accordingly, Ms Zhao contractually submitted to the jurisdiction of that court in the event of a dispute under any of the loan agreements.

As Ms Zhao was a citizen of China, was possessed of a Chinese passport, held an identity card and submitted to the jurisdiction of the Suzhou Court by agreement, it is not necessary to decide whether she was considered by Chinese law to be domiciled in the People's Republic of China.

(2) On the evidence, a person from Bolun was in attendance at the Suzhou Court on 9 June 2014. This was not disputed by Ms Zhao, however I do note the submissions extracted in para [32] above. Nor was it disputed that this person - said to be a male employee of Bolun - informed the Court that Ms Zhang was unable to attend the hearing as she was suffering from depression. This evidence, which the Court accepts, illustrates that Ms Zhao must have been well aware that proceedings had been instituted against her in China, as this individual proffered medical records of Ms Zhao to justify her non-attendance.

(3) The text messages sent by Ms Zhao to Ms Xiao[32] clearly indicate that Ms Zhao was aware of and accepted her indebtedness to Suzhou Haishun. There was no protest in the text exchanges or expressions of bewilderment that she was not the borrower at all. No evidence was adduced to counter what appears a plain reading of the texts. The submission of Ms Zhao that she did not remember sending the texts is unconvincing and must be rejected. Any assertion by Ms Zhao that the phone number on the texts was not hers or that she is unable to produce phone records from her own phone are equally unconvincing and, to the extent that they are made and maintained, must be rejected.

(4) There is no dispute that funds in respect of the loan agreements were paid into an account nominated by Ms Zhao, and that each of the advances in respect of each of the loan agreements were acknowledged by her. It is trite to observe that the nomination by a borrower of a different account into which funds are to be paid has no bearing on the underlying legal liability of Ms Zhao as party to the loan agreements.

(5) Ms Zhao's account of duress suffered at the hands of eight men with Ms Xiao in attendance, forcing her to sign backdated documents, is indeed a serious allegation. This incident is, on the evidence, extremely vague, not rising above mere assertion. Based on the evidence before me, I cannot conclude that it occurred. Certainly, there is no evidence before me that these serious allegations were raised in the Chinese proceedings, either when there was an appearance before the Court by the Bolun representative, or at any later time. The conclusion that this version of events is merely a recent invention is inescapable.

It is noteworthy that while the incident is alleged to have taken place on 26 April 2014, the text messages exchanged between Ms Zhao and Ms Xiao between 29 April 2014 and 1 May 2014 give no indication that Ms Zhao considered the loan agreements to be anything but bona fide. If the loan agreements had indeed been procured by duress, it would be expected that Ms Zhao would have raised this with Ms Xiao.

It is also noteworthy that the allegations of duress were not made in any of Ms Zhao's affidavits prior to 17 May 2018. The allegations first appeared in her defence to the further amended statement of claim, filed on 17 May 2018. In her affidavit of 7 June 2018, Ms Zhao confirmed that the facts described in that notice of defence were true. Ms Zhao's affidavit made 20 November 2015 makes no mention of duress. In it, she simply denied any knowledge of the Chinese proceedings, stated that it was 'difficult' for her to 'explain the factual circumstances giving rise to [her] dealings' with Suzhou Haishun, and denied that she owed any debt to Suzhou Haishun. Similarly, no allegations of duress were made in Ms Zhao's affidavits made on 29 March 2018 or 16 May 2018. Ms Zhao has offered no explanation as to why the allegations were made so far into the course of these proceedings.

I find that there is no arguable defence on the grounds of duress.

(6) Despite having become aware of the Chinese judgments some time ago, Ms Zhao made no attempt to appeal those judgments, or have them set aside or reviewed. Suzhou Haishun led uncontradicted evidence that such procedures were available under Chinese law.

(7) In her defence to the further amended statement of claim, Ms Zhao alleged that she was denied natural justice in the Chinese proceedings. She asserted that 'the courts of the People's Republic of China are of their nature corrupt and the rule of law does not apply to a Court of the People's Republic of China'. This assertion was not supported by any evidence. Ms Zhao did not point to any particular legal or procedural defect in the Chinese judgments (apart from the issue of service, which I have considered) that would warrant such a conclusion.

I find that there is no arguable defence on the grounds of denial of natural justice.

(8) In her defence to the further amended statement of claim, Ms Zhao alleged that the judgments in the Chinese proceedings were penal. The basis of this allegation was that the judgment in the Chinese proceeding dated 16 October 2015 provided, inter alia, that Ms Zhao was to pay a penalty interest rate of 'quadruple [the] benchmark interest rate released by the People's Bank of China for loans of the same type at the same period'.

The judgment also provides that, according to the Civil Procedure Law of the People's Republic of China art 253, judgment debtors who fail to repay judgment creditors within the time provided for by the court are liable to pay double interest.

As discussed above, the fact that part of a foreign judgment is penal in nature, or relates to a law that is penal in nature, does not necessarily render the foreign judgment unenforceable in its entirety.[33] Interest on the loans and the judgment debt constitutes only part of the award ordered by the Suzhou Court in each of the Chinese proceedings. Ms Zhao did not contend that the orders made by the Suzhou Court to repay the principal owing under the loan agreements were penal. As such, if part or all of the interest ordered to be paid by the Suzhou Court is held to be penal in nature, it will be entirely possible to sever those remedies from the Chinese judgments, and to enforce the remainder.

Having received further submissions on this issue from the parties and considering the interest rates imposed, and given Suzhou Haishun's submissions that interest will not be sought on interest, I do not consider that the interest awarded is penal in nature by the standards of this Court.

115 I will hear the parties on the form of orders and the question of costs.

[1] See above para [15].

[2] Re Tang [2017] VSCA 171; (2017) 52 VR 786, 803-4 [64].

[3] [2013] VSCA 158; (2013) 42 VR 27, 40 [35]. The decision has been cited with approval in a number of subsequent decisions. See, e.g., Slaveska v Elenchevski [2013] VSCA 283 [34] (Neave JA); Lubura v Nezirevic [2013] VSCA 215; (2013) 42 VR 43, 44 n 2 (Warren CJ); Mutton v Baker [2014] VSCA 43 [18] (Santamaria JA); Doe v Howard [2015] VSC 75 [54] (J Forrest J).

[5] Re Tang [2017] VSCA 171; (2017) 52 VR 786, 803-4 [64].

[8] Ibid [28]. AsianLII is a database of the laws of various Asian jurisdictions maintained by the Australian Legal Information Institute ('AustLII'), a joint project of the law faculties of the University of Technology Sydney and the University of New South Wales.

[9] See the Foreign Judgments Regulations 1992 (Cth) sch 1.

[11] Martin Davies, Andrew Bell and Paul Le Gay Brereton, Nygh's Conflict of Laws in Australia (LexisNexis Butterworths, 9th ed, 2014) 895.

[12] Stern v National Australia Bank; National Australia Bank Ltd v Pollack [1999] FCA 1421 [133] (Tamberlin J).

[13] Re Macartney [1921] 1 Ch 522, 527-8 (Astbury J).

[14] Re Meyer [1971] 1 All ER 98; [1971] P 298, 307 (Bagnall J).

[15] Israel Discount Bank of New York v Hadjipateras [1983] 3 All ER 139; [1984] 1 WLR 137, 143 (Stephenson LJ, with whom O'Connor and Robert Goff LJJ agreed).

[16] Keele v Findley (1990) 21 NSWLR 444, 457-8 (Rogers CJ).

[17] Price v Dewhirst [1837] EngR 717; (1837) 8 Sim 279; 59 ER 111.

[18] Schnabel v Lui [2002] NSWSC 15 [180] (Bergin J); Benefit Strategies Group Inc v Prider [2005] SASC 194; (2005) 91 SASR 544, 566 [75] (Bleby J).

[19] Boele v Norsemeter Holding AS [2002] NSWCA 363 [24] (Giles JA).

[20] Stern v National Australia Bank; National Australia Bank Ltd v Pollack [1999] FCA 1421 [133] (Tamberlin J).

[21] Norsemeter Holding AS v Boele (No 1) [2002] NSWSC 370 [14] (Einstein J) (reversed on other grounds in Boele v Norsemeter Holding AS [2002] NSWCA 363).

[22] Ellis v M'Henry (1871) LR 6 CP 228.

[23] Banco de Vizcaya v Don Alfonso de Borbon y Austria [1935] 1 KB 140. See also Benefit Strategies Group Inc v Prider [2005] SASC 194; (2005) 91 SASR 544, 563 [60]-[61] (Bleby J).

[24] [1893] AC 150, 156.

[26] [1989] 1 QB 255, 265.

[27] [2005] SASC 194; (2005) 91 SASR 544, 565 [68] ('Benefit Strategies Group').

[28] Schnabel v Yung Lui [2002] NSWSC 15 (1 February 2002) [176].

[29] [2005] SASC 194; (2005) 91 SASR 544, 565-6 [72].

[31] See above paras [86]-[88].

[32] See above paras [40]-[42].

[33] See above para [101].