PRIVATE INTERNATIONAL LAW — recognition of foreign judgment debt in previous judgment — application to vary judgment and reopen defence to challenge interest awarded — whether claim for contractual interest statute-barred — applicable limitation period determined by Chinese law — no Chinese law limitation defence pleaded or proved — whether interest awarded under foreign judgment properly compared with statutory post-judgment interest — interest sought was pre-judgment interest in this Court — whether base interest and additional interests under Civil Procedure Law of the People’s Republic of China art 253 were penal — base interest derived from contractual rate and not penal — additional interest following default not, without more, penal — no reason to depart from first-instance treating art 253 interest as non-penal — reopening refused — separate application for execution remedies — no stay of judgment — Registrar’s refusal of garnishee orders set aside — garnishee orders, writ of levy, production and examination orders, and asset-preservation orders made — adjournment pending appeal refused.
Quick Take
1Interest awarded by a foreign court — including both base contractual interest (here 24% p.a.) and additional default interest under Article 253 of the Chinese Civil Procedure Law (6.3875% p.a.) — is not penal in character merely because it exceeds the prescribed post-judgment interest rate in New South Wales, particularly where the base rate derives from a contractual rate and the additional interest compensates for delayed payment rather than punishing the debtor.
2When enforcing a foreign judgment, pre-judgment interest in the forum should ordinarily be awarded in accordance with the rates specified in the foreign judgment as a matter of right under CPA s 100(3)(b), or alternatively by exercise of discretion under s 100(1); the proper comparator for assessing whether such interest is excessive is not confined to the statutory post-judgment rate under CPA s 101(2), since that provision itself permits the court to award interest at contractual rates in commercial cases.
3The pendency of an application to vary a judgment, without any stay having been sought or granted, does not justify a Registrar's refusal to issue garnishee orders in enforcement of the judgment; a judgment creditor is entitled to enforce in the ordinary course absent a stay.
