Almarzooqi v Salih - [2021] NZSC 161

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 102/2021
[2021] NZSC 161

BETWEEN	RAHLA HUSSEIN AMIN HARDER ALMARZOOQI Applicant
AND	RAFID MOHAMMED SALIH Respondent

Court:	William Young, Ellen France and Williams JJ
Counsel:	J L W Wass and M Freeman for Applicant M V Smith for Respondent
Judgment:	23 November 2021

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The application for leave to appeal relates to the enforcement of the judgment of a foreign court, namely, an order of the Personal Matters Court in Dubai that the respondent, Mr Salih, pay the applicant, Ms Almarzooqi, a deferred dowry on their divorce. Ms Almarzooqi brought proceedings to enforce that judgment in New Zealand. The High Court declined the application because the Dubai court did not, as a matter of New Zealand law, have jurisdiction in that matter over Mr Salih.[1] Ms Almarzooqi seeks leave to appeal from the decision of the Court of Appeal upholding the judgment of the High Court.[2]

Background

[1]Almarzooqi v Salih [2020] NZHC 2441 (Associate Judge Johnston).

[2]Almarzooqi v Salih [2021] NZCA 330 (Clifford, Brewer and Dunningham JJ) [CA judgment].

The parties met online in 2010. At that point, Ms Almarzooqi was living in Australia and Mr Salih in New Zealand. She came to New Zealand in 2013 and they formed a relationship.
The parties were married in Dubai under Islamic/Sharia law on 26 December 2013. Their contract of marriage was solemnised by order of the Dubai court. Amongst other matters, that order provided that Mr Salih would pay Ms Almarzooqi a deferred dowry of just over $200,000 on the earlier of their divorce or his death (the Mahr).
The parties separated in May 2014. By that point they were both living together in New Zealand. Ms Almarzooqi went back to Dubai to seek a divorce. The divorce was granted by the Dubai court on 1 November 2016 in Mr Salih’s absence. The Dubai court ordered him to pay the Mahr, along with money for alimony and housing support.
Both parties currently live in New Zealand. Ms Almarzooqi is a citizen of the United Arab Emirates (the UAE) and has residency in New Zealand. Mr Salih has Iranian and New Zealand citizenship.
A copy of the Dubai judgment was served on Mr Salih in New Zealand on 29 June 2017. Ms Almarzooqi then began the proceeding in the High Court to enforce the Dubai judgment.

The Court of Appeal judgment

In dismissing the appeal, the Court of Appeal rejected the argument that the New Zealand courts recognise the jurisdiction of a foreign court over a non‑resident by reference to the principles, reflected in rr 6.27–6.29 of the High Court Rules 2016, in determining whether they have jurisdiction over a non‑resident. The Court cited a passage from The Conflict of Laws in New Zealand, where the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZSC 161
Decision Date: 23 November 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application by Rahla Hussein Amin Harder Almarzooqi, an Emirati citizen with residency in New Zealand, to appeal the Court of Appeal's decision to uphold the High Court's refusal to enforce a Dubai court judgment ordering her ex-husband, Rafid Mohammed Salih, a dual Iranian and New Zealand citizen, to pay her a deferred dowry on their divorce. The Court granted the application for an extension of time to apply for leave to appeal but dismissed the application for leave to appeal itself. The Court of Appeal had previously rejected Ms Almarzooqi's argument that New Zealand courts should recognise the jurisdiction of a foreign court over a non-resident by reference to principles determining whether they have jurisdiction over a non-resident. The Court of Appeal also rejected Ms Almarzooqi's argument that the specific context of "matrimonial proceedings" could alter the position. The Court of Appeal noted that there was limited recognition of jurisdiction on the basis of reciprocity in matrimonial proceedings but did not consider that this principle applied beyond the question of recognition of the divorce. The Supreme Court found that there was some doubt as to whether or not adopting the real and substantial connection test would alter the outcome of this case, indicating that this proposed appeal was not a good vehicle for the Court to address the point. The Court also found that it was preferable for any development of the New Zealand position to be by international agreement rather than by this Court. Finally, the Court found no appearance of a miscarriage of justice in the assessment of the Court of Appeal in this case. The Supreme Court granted the application for an extension of time to apply for leave to appeal but dismissed the application for leave to appeal itself.

Orders