Almarzooqi v Salih
[2025] NZHC 1436
•4 June 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-751
[2025] NZHC 1436
BETWEEN RAHLA HUSSEIN AMIN HARDER ALMARZOOQI
PlaintiffAND
RAFID MOHAMMED SALIH
Defendant
Hearing: 26 March 2025 Appearances:
M Freeman and J Wass for Plaintiff
P Michalik and M Smith for Defendant
Judgment:
4 June 2025
JUDGMENT OF ASSOCIATE JUDGE SKELTON
[1] The defendant in this proceeding, Mr Salih, applies for summary judgment against the plaintiff, Ms Almarzooqi, on the basis of s 11 of the Limitation Act 2010. There are also outstanding issues in respect of the defendant’s earlier application for strike out of parts of the affidavit evidence that have not been resolved between the parties.
[2] The background to this proceeding was set out in a recent Court of Appeal decision, which I gratefully adopt:1
[1] This appeal concerns the enforcement of a nikah — an Islamic marriage contract, under which the husband is required to provide a gift (mahr) to the wife. The mahr is usually of monetary value and is given in part
1 Salih v Almarzooqi [2023] NZCA 645.
ALMARZOOQI v SALIH [2025] NZHC 1436 [4 June 2025]
before the marriage (the “prompt” mahr) and in part on the earlier of death or divorce (the “deferred” mahr).2 …
[2] In 2013 Mr Salih and Ms Almarzooqi married in Dubai, in the United Arab Emirates (UAE), in a traditional Islamic ceremony, which included the signing of a nikah. The nikah provides for a deferred mahr of AED 500,000, equivalent to approximately NZD 230,000. The marriage only lasted a short time. The parties are now divorced, though both still live in New Zealand. There is a dispute over whether Mr Salih is liable for the deferred mahr, either in full or in part.
[3] In November 2016, Ms Almarzooqi obtained an order for divorce from the Dubai Personal Matters Court on the ground that Mr Salih had mistreated her. She also obtained an order for payment of the deferred mahr in full. Ms Almarzooqi brought proceedings to have the latter recognised and enforced in New Zealand by summary judgment and, in the alternative, to enforce payment under the nikah directly.
[4] The summary judgment application was determined first and was unsuccessful.3 Ms Almarzooqi then advanced her claim for payment of the mahr. The issues for determination were the proper law of the contract, whether the mahr had become payable under that law and if so, whether the Court should reduce the amount payable on public policy grounds. In the High Court Mr Salih accepted the validity of the divorce but maintained that Ms Almarzooqi had to prove her allegations of misconduct in a New Zealand court and could not rely on the factual findings of the Dubai court.
[5] Simon France J held that the proper law of the nikah is UAE law and that under that law the mahr became payable upon the divorce being granted by the Dubai court, regardless of the ground on which it was granted. He also held that if New Zealand law applied, the nikah would be similarly enforceable and the mahr therefore payable.4 He entered judgment against Mr Salih for the full amount of the mahr, to be assessed in New Zealand dollars. Mr Salih appeals.
[3] To this summary, I add that Ms Almarzooqi commenced these proceedings by way of an original statement of claim in 2019, pleading two causes of action: enforcement of the Dubai court’s decision and breach of contract. Ms Almarzooqi filed an amended statement of claim on 6 October 2021, which pleaded that the first cause of action had been finally determined on the basis that the Court of Appeal determined that the Dubai court did not have jurisdiction to order Mr Salih to pay the
2 There are various spellings of mahr. For convenience we adopt the spelling used by the parties and counsel in this case. We note, too, that the mahr is sometimes described as a dower or dowry, though that differs from the usual understanding of that word in New Zealand as a payment made by the bride’s parents to the husband and his family.
3 The application was refused because Mr Salih had not submitted to the Dubai court: Almarzooqi v Salih [2020] NZHC 2441. Ms Almarzooqi’s appeal against that decision was dismissed: Almarzooqi v Salih [2021] NZCA 330, [2021] NZFLR 501. Her application for leave to appeal to the Supreme Court was declined: Almarzooqi v Salih [2021] NZSC 161, [2021] NZFLR 606.
4 Almarzooqi v Salih [2022] NZHC 1170, [2022] NZFLR 282.
mahr.5 The claim for breach of contract remained, although was it was amended to plead that the Sharia law of the United Arab Emirates was the proper law of the contract.
[4] The Court of Appeal held that the proper law of the nikah is New Zealand law, and that the nikah is enforceable under New Zealand law. Two issues remained. First, whether the wording in the nikah requiring the payment of the deferred mahr on “divorce” means divorce regardless of the grounds on which the divorce was granted or divorce on a particular ground. Second, if Ms Almarzooqi must prove the ground on which divorce was granted, whether she can rely on the factual findings of the Dubai court to prove that ground.6
[5] As to the first issue, the Court recognised that the interpretative task would depend on the cultural context and on evidence about the general principles of Sharia law.7 The Court recognised three forms of divorce under Sharia law with different consequences regarding payment of the mahr.8 The first type is the talaq.9 This is divorce by the husband’s voluntary pronouncement. Talaq may be declared and withdrawn twice but if done a third time, the marriage is finally over and the mahr becomes payable. Alternatively, the wife may ask for divorce with the husband’s prior consent. This is the khul divorce and it has the effect of releasing the husband of his obligation to pay the mahr.10 The third form of divorce is the faskh.11 This is essentially fault-based divorce and requires a judicial decree. It can only be obtained on one of the recognised grounds. Under this form, the wife may seek a divorce without the husband’s consent by proving one of the recognised grounds. If the wife obtains a faskh divorce, the wife is entitled to payment of the deferred mahr.
[6] The Court found that there was not sufficient evidence before it on the principles of Sharia law to interpret the nikah. The Court said ideally, the principles
5 Almarzooqi v Salih (CA), above n 3.
6 Salih v Almarzooqi [2023] NZCA 645 at [102]
7 At [103]–[105].
8 The Court qualified this section of the judgment as being “drawn mainly from Western academic commentary”.
9 At [24].
10 At [25].
11 At [26].
of Sharia law as they would have been understood by the parties and by a reasonable bystander, would have been addressed more extensively, either by an expert jointly engaged for that purpose or by each party adducing evidence. The Court made no criticism of the parties for not addressing this issue because Sharia law (as opposed to UAE law) was not identified as a relevant topic requiring evidence. The Court concluded that the proper course was to allow the appeal and remit the matter of interpreting the nikah to the High Court, so that expert evidence as to the cultural context in which the contract was entered could be adduced and relied on to interpret its meaning.12
[7] As to the second issue, the Court noted Mr Salih’s position that the mahr only becomes payable on proof of his mistreatment of Ms Almarzooqi (as opposed to the mere fact of divorce) and that fact must be proved in a New Zealand court. Ms Almarzooqi, however, wished to rely on the Dubai court’s findings of fact that Mr Salih had mistreated her, asserting res judicata as an issue estoppel.13 The Court observed that New Zealand courts had determined that Mr Salih had not submitted to the jurisdiction of the Dubai court.14 The effect of this was to preclude Ms Almarzooqi being able to rely on the factual findings of the Dubai court as a res judicata. Thus, the Court held that, if the High Court ultimately finds that the nikah requires Mr Salih to pay the mahr only upon proof of his misconduct, Ms Almarzooqi will need to prove that fact.15
[8] Following the Court of Appeal’s decision, and each party filing expert evidence on the cultural context in which the nikah was entered into, Ms Almarzooqi filed a second amended statement of claim on 30 August 2024. This was refiled on 5 November 2024 with one amendment by consent as a result of Mr Salih’s application for strike out of certain paragraphs in the second amended statement of claim.16 The 5 November 2024 statement of claim is the current claim, pleading a single cause of action, now headed “Enforcement of Rights under Contract/Deed”. The amended
12 At [106]–[109].
13 At [110]–[112].
14 Citing Almarzooqi v Salih (HC), above n 3, at [40]; and Almarzooqi v Salih (CA), above n 3, at [58]–[59].
15 At [113]–[114].
16 Almarzooqi v Salih HC Wellington CIV-2019-485-751, 5 November 2024 (Minute of Associate Judge Skelton).
pleading includes a new section in the background facts which pleads the reasons that Mr Salih and Ms Almarzooqi separated, including events occurring when the couple were living in New Zealand in 2014 as follows:
8.1The Defendant physically and verbally abused the Plaintiff.
8.2The Defendant required the Plaintiff to remain hidden within the confines of their rented accommodation and remain out of sight.
8.3The Defendant refused to publicly acknowledge his marriage to the Plaintiff.
8.4The Defendant refused to have the marriage registered in New Zealand and declared himself as single on immigration forms seeking to sponsor his family to come to New Zealand.
8.5The Defendant has refused and/or failed to maintain the Plaintiff during the marriage (both before and after separation).
[9]The cause of action itself is amended to allege that:
35.The Plaintiff has grounds for a divorce for harm from the Defendant because of the reasons for separation in paragraph 8.
36.The Plaintiff has obtained a divorce from the Defendant, as decreed by the Dubai Court in the Dubai Judgment (the divorce).
37.The divorce is a matter in rem recognised by the New Zealand Court under section 44 of the Family Proceedings Act 1980.
38.The divorce is one of the “two terms” which triggers the payment of the deferred dowry in the Nikah.
[10] Mr Salih contends that the amendments in the second amended statement of claim create a fresh cause of action which has been filed more than six years after the date of the act or omission on which the claim is based, and therefore he has a defence to the claim under s 11 of the Limitation Act, and the claim cannot succeed.
Legal principles
Summary judgment
[11]Rule 12.2 of the High Court Rules relevantly provides:
12.2 Judgment when there is no defence or when no cause of action can succeed
…
(2)The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[12] The approach to an application for summary judgment by defendants was discussed in the Court of Appeal’s decision in Westpac Banking Corp v MM Kembla New Zealand Ltd, which was later summarised by the Court of Appeal in Stephens v Barron:17
[9] … Summary judgment may be given under that rule if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed. This Court’s decision in Westpac Banking Corp v M M Kembla New Zealand Ltd makes it clear that a defendant seeking summary judgment has a considerable burden to discharge. Elias CJ delivering the judgment of the Court, made the following points:
(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.
(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.
(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.
(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.
(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.
17 Stephens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734 at [9] citing Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [61], [62], [64], [66] and [68] (footnotes omitted).
[13]As the Privy Council noted in Jones v Attorney-General, summary judgment:18
… should not be given for the defendant unless [the defendant] shows on the balance of probabilities that none of the plaintiff’s claims can succeed. That is an exacting test, and rightly so since it is a serious thing to stop a plaintiff bringing his claim to trial unless it is quite clearly hopeless.
[14] The courts have observed the similarity between a defendant’s application for summary judgment and an application for strike out.19 The applications, however, are not interchangeable. In a summary judgment application, affidavit evidence can be provided and, therefore, judgment can be obtained on the basis of material outside of the pleadings. Further, as Elias CJ noted in Body Corporate No 207624 v North Shore City Council, if the dispute is essentially a legal question, striking out is likely to be the appropriate course of action.20
[15] Although in the context of a strike out application rather than an application for summary judgment, the Supreme Court observed in Murray v Morel & Co Ltd:21
… in order to succeed in striking out a cause of action as statute-barred, the defendant must satisfy the Court that the plaintiff’s cause of action is so clearly statute-barred that the plaintiff’s claim can properly be regarded as frivolous, vexatious or an abuse of process. If the defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for the particular cause of action by the Limitation Act, the defendant will be entitled to an order striking out that cause of action unless the plaintiff shows that there is an arguable case for an extension or postponement which would bring the claim back in time.
Leave to apply for summary judgment
[16] Mr Salih has not applied for leave to apply for summary judgment at this late stage as required by r 12.4 of the High Court Rules. Although faintly raised in the notice of opposition, the issue of leave is not pressed on behalf of Ms Almarzooqi.
18 Jones v Attorney-General [2003] UKPC 48, [2004] 1 NZLR 433 at [10].
19 See Ferrymead Tavern Ltd v The Christchurch Press Co Ltd [1999] NZAR 529 (HC) at [10]–[12]; Body Corporate No 2076624 v Northshore City Council [2012] NZSC 83, [2013] 2 NZLR 297 at [4]; and Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 (CA) at [19]–[21].
20 Body Corporate No 207624 v North Shore City Council, above n 19, at [4] as cited in Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR12.2.07(2)] [McGechan on Procedure].
21 Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [33].
[17] Rule 12.4(3) provides that an application by a defendant for summary judgment may be made either at the time the initial statement of defence is served on the plaintiff, or later with the leave of the Court.22 No guidelines are laid down in High Court Rules for the granting of leave, the question is a discretionary one and it is up to the party applying for leave to show why it should be granted.23 It is recognised that there are three factors that should be considered in relation to the issue of leave:24
(a)Has the delay in filing been satisfactorily explained?
(b)Are the merits of the applicant’s case for the relief sought particularly strong and therefore deserving of determination at a later time by the Court than is prescribed by the rules?
(c)Is there any risk of miscarriage of justice by determining the summary judgment application at the later point in time?
[18] The Court of Appeal has emphasised that leave should not be treated as a mere formality and should be addressed as a prior step to the consideration of the summary judgment application itself:25
[13] We add that it is important that leave be dealt with as a prior step to the merits of an application for which leave is required. The criteria for granting leave need to be addressed, even if the merits of the substantive application are, themselves, an important aspect of the leave decision.
[19] In Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd, Andrews J held that the Court should not grant leave to apply for summary judgment out of time unless doing so will have the effect of avoiding prolonged proceedings.26
[20]I now turn to consider the relevant factors regarding leave.
[21] The limitation issue now raised by Mr Salih has only arisen after the filing of the second amended statement of claim on 30 August 2024. Following Mr Salih’s strike out application in respect of parts of the second amended statement of claim, the
22 McGechan on Procedure at [HR12.4.01].
23 Tip Top Icecream Ltd v Polarland Ltd (2002) 7 NZBLC 103,564 at [27].
24 Fowler v Selwyn District Council [2021] NZHC 2218 at [12] citing Tip Top Icecream Ltd v Polarland Ltd, above n 23, at [28].
25 Stevens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734 at [13].
26 Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 592, (2015) 22 PRNZ 724 at [34]–[35].
claim was refiled on 5 November 2024. Mr Salih’s application for summary judgment could have been filed together with the strike out application. However, it was filed on 6 December 2024 with his statement of defence to the second amended statement of claim. The delay between 30 August and 6 December 2024 is not satisfactorily explained. However, in the context of the proceedings this was only a short delay. Further, Ms Almarzooqi has not raised any risk of miscarriage of justice by determining Mr Salih’s summary judgment application at this stage, and I do not see any such risk.
[22] The issue of the merits of Mr Salih’s case is bound up with consideration of his substantive application for summary judgment. Although I have determined that the substantive application should be dismissed, which I discuss in detail below, I consider that the application had sufficient merit to warrant leave being granted.
[23] Accordingly, I grant leave for Mr Salih to bring his application for summary judgment.
Application for summary judgment
[24] Mr Michalik, for Mr Salih, argues that, based on the expert evidence filed on behalf of Ms Almarzooqi since the Court of Appeal referred the matter back to this Court, she must prove she was entitled to a faskh divorce from Mr Salih for his fault. He contends that the claim depends on proof of Mr Salih’s fault during the marriage which is a matter fact. He notes that the Court of Appeal has found that Ms Almarzooqi cannot rely on the factual findings of the Dubai court to prove any necessary fault or misconduct, but will need to prove this herself. Mr Michalik says that, therefore, she needs to make allegations of harm during the marriage and bring evidence to prove these allegations in this Court and has amended her statement of claim accordingly.
[25] Mr Michalik contends, however, that the amendments create a fresh cause of action and that the claim has been filed more than six years after the date of the act or omission on which the claim is based, whether that is the date of the alleged misconduct of Mr Salih during 2014 or the date the marriage ended on 1 November
2016. Therefore, it is contended Mr Salih has a defence to the claim under s 11 of the Limitation Act 2010.
[26] Mr Freeman, for Ms Almarzooqi, submits that there is no new cause of action. Ms Almarzooqi has pleaded new, potentially relevant, facts as a result of the Court of Appeal decision and expert evidence subsequently obtained. He says that these facts include Ms Almarzooqi’s grounds for a divorce for harm and particularisation of those grounds. Mr Freeman submits that the new pleaded facts may be relevant in determining whether the mahr is owed under the nikah, depending on the determination of the interpretation issue. Mr Freeman contends that Ms Almarzooqi has simply refined her cause of action to conform to the issues the Court of Appeal has directed the High Court to consider and decide.
[27] In Commerce Commission v Visy Board Pty Ltd, the Court of Appeal referred to the applicable principles to determine whether an amendment creates a fresh cause of action summarised in Transpower New Zealand Ltd v Todd Energy Ltd.27 The Court found that:28
[142] The question is therefore whether the amendment to the pleadings changes the claim against the defendant so that it is something essentially different from what it was before the amendment. A change of that nature can
…occur as a result of an alteration in matters of fact. …
…
[146] …in order for an amendment to amount to a new cause of action, there must be a change to the legal basis for the claim. That can, in theory, occur through the addition of new facts, but only if the facts added are so fundamental that they change the essence of the case against the defendant. If the basic legal claims are the same, and they are simply backed up by the addition or substitution of a new fact, that is unlikely to amount to a new cause of action.
[28] In ISP Consulting Engineers Ltd v Body Corporate 89408, the Court of Appeal found that:29
27 Transpower New Zealand Ltd v Todd Energy Ltd [2007] NZCA 302 at [61].
28 Commerce Commission v Visy Board Pty Ltd [2012] NZCA 383.
29 ISP Consulting Engineers Ltd v Body Corporate 89408 [2017] NZCA 160; see also Chilcott v Goss [1995] 1 NZLR 263 (CA) at 273; Attorney-General v Carter [2003] 2 NZLR 160 (CA) at [48]; and Body Corporate 355492 v Queenstown Lake District Council [2022] NZHC 678 at [24]– [30].
[22] The issue is whether the Owners were setting up a new case, in the sense of making new allegations that would involve the investigation of an area of fact of a new and different nature, or a new and different legal basis for a claim not put forward in the earlier pleading. To put the question more generally, does the Second CSC have an essentially different character from the First CSC? The assessment is objective and the consideration must be of the substance of what is pleaded, rather than the form.
[23] If an amended pleading puts forward a new legal basis for a claim, that will be on its face a new cause of action. That consideration does not arise in this case. The legal basis for the claim, breach by ISP of its duty of care, remains the same. …
[24] In relation to new facts, McCarthy J stated in Smith v Wilkins & Davies Construction Co Ltd:30
On the other hand, more often alterations of fact do not affect the essence of the case brought against the defendant. Lord Wright said of a certain alteration “in my view, therefore, the proposed amendment would, if allowed, have set up a new cause of action, involving quite new considerations, quite new sets of facts, and quite new causes of damage and injury, and the only point of similarity would be that the plaintiff had suffered certain injuries”. I do not read that passage as implying a prohibition against any alteration of facts. In each case it must, I consider be a question of degree.
[25] It is clear that the importance of the pleaded fact to the success of the claim is not the test. The question is whether the proposed amendment will change the essential nature of the claim; is there a new area of factual enquiry? The fact that the underlying facts may be the same or similar does not save a cause of action from being fresh if the plaintiff seeks to derive a materially different legal consequence from the facts.
[29] On the basis of these authorities, the issue is whether the amendments in the second amended statement of claim have changed the essential nature of the claim by Ms Almarzooqi against Mr Salih, recognising that questions of degree are involved?
My assessment
[30] First, this case has been remitted to this Court by the Court of Appeal for the purpose of determining the interpretation issue referred to above and then, if necessary, to allow for Ms Almarzooqi to prove any particular ground(s) for divorce she is required to prove. It is not apparent that any issue was raised in the Court of Appeal as to the prospect that this may at some stage require Ms Almarzooqi to amend her
30 Smith v Wilkins & Davies Construction Co Ltd [1958] NZLR 958 (SC) at 961.
claim to allege the facts necessary to prove the particular ground(s) for divorce, and whether this may have any consequences in terms of the limitation period.
[31] Mr Salih’s application for summary judgment now raises this issue and seeks to bring the proceedings to an end preventing this Court from reconsidering the remitted case in accordance with the decision of the Court of Appeal. On the face of it, this would be a most unfortunate and unjust outcome. Ms Almarzooqi, who was initially successful in this Court in May 2022 (less than six years after the Dubai court judgment) and apparently relied on the findings of this Court as to the proper law of the contract and other matters pending the outcome of Mr Salih’s appeal in December 2023, would be unable to have her case reconsidered by this Court as ordered by the Court of Appeal.
[32] The interpretation issue requires this Court to determine whether the nikah, properly interpreted within the particular cultural context (expert evidence on general principles of Sharia law), provides that the obligation to pay the deferred mahr is triggered by the fact of divorce or a particular form of divorce or, in the case of a faskh divorce, a particular ground (or grounds) for the divorce.31
[33] Ms Almarzooqi’s expert, Tariq Saeed, opines that the obligation to pay the mahr provided for in the nikah would be triggered by an irrevocable divorce, either by talaq or faskh.32 He states the particular quality of the divorce triggering payment of the mahr is that it is an “irrevocable divorce”.
[34] Mr Salih’s expert, Mohammad Sahib, agrees with the general proposition put forward by Mr Saeed that: “if the wife makes out grounds for a faskh this is decided
31 As discussed above at [5], the Court of Appeal recognised three forms of divorce with different consequences regarding payment of the mahr.
32 Mr Saeed states in his affidavit evidence that, if the husband initiates and obtains a dissolution of marriage under New Zealand law, that is treated for all intents and purposes as a talaq divorce. Simon France J observed at [47] of his judgment that:
I also observe that in my assessment the defendant [Mr Salih] did not adequately explain how his application in New Zealand for a divorce was to be treated. He applied for and obtained an order of dissolution from the New Zealand Family Court. I recognise that was in response to Ms Almarzooqi obtaining an order in Dubai, but there was no evidence on how this unilateral act of divorce by the husband should be regarded under Sharia law in terms of payment of the Mahr. On the face of Mr Taha’s evidence, it would seem to trigger the obligation.
by the Qadi who pronounces the irrevocable divorce ‘for harm’. In that case, … the mahr provided for in the nikah must be paid to the wife.” However, Mr Sahib states that this proposition does not identify the grounds that the wife has to prove. He states that the grounds on which a wife can obtain faskh “vary according to the school of Islamic law being considered, and are very restrictive.” He refers to the main grounds as being “impotence or failure to consummate or insanity” and in some schools “abandonment and failure to maintain are added”. Mr Sahib disagrees that any irrevocable divorce by faskh would trigger payment of the mahr under the subject nikah. He opines:
The actual contract says that the deferred mahr is payable “on the earliest of the two terms” and is not clear what those “two terms” are. In my experience, ordinary Muslins reading a contract to pay a deferred mahr “on the earliest of the two terms” would understand this meant the mahr was payable under the contact if the husband died before the wife, as long as she was innocent of causing that death, or if the husband divorced the wife by talaq.
… they would not think that any irrevocable divorce by faskh would put a contractual obligation on the husband to pay the deferred mahr. I do not agree that an ordinary Islamic couple signing their marriage contract would think that any irrevocable divorce by faskh was one of the “two terms” that might make the deferred mahr payable.
An ordinary Islamic couple might also understand that, outside the terms of the contract, the wife could be paid the deferred mahr if she divorced her husband before an Islamic authority and could show a sufficient Islamic cause, that was not her fault. This is not the same as any irrevocable divorce by faskh.
…
I agree with what Mr Pearl’s textbook says about the different schools and the different grounds they recognise for a faskh divorce by the wife. These grounds are very limited. Most couples that are about to get married would not contemplate faskh divorce by the wife as something that could realistically happen. So an ordinary Islamic couple looking at signing a marriage contract that said the deferred mahr would be paid “on the earliest of two terms” would think of the “two terms” as the death of the husband before the wife, or his ending their marriage by talaq.
[35] Therefore, the interpretation issue remains to be determined by this Court. The Court may determine, for example, that, on the proper interpretation of the nikah, the obligation to pay the deferred mahr is triggered by an “irrevocable divorce” either by talaq or faskh, with the essential issue being the irrevocable nature of the divorce. In that scenario, Ms Almarzooqi may only need to establish that the judgment of the Dubai court on 1 November 2016 was an “irrevocable divorce”. Alternatively, the
Court may determine that the obligation to pay the deferred mahr is triggered by an irrevocable faskh divorce on a particular ground or grounds. In that scenario, Ms Almarzooqi would be required to establish that the judgment of the Dubai court is, or is essentially, an irrevocable faskh divorce, and she would be required to prove one or more of the relevant grounds without relying on the factual findings of the Dubai court.
[36] In this context, I turn to consider whether the second amended claim has changed the essential nature of Ms Almarzooqi’s claim against Mr Salih as pleaded in the first amended claim.33 The essential nature of the claim as pleaded in the first amended claim is a claim for payment of the deferred mahr under the nikah on the basis that: the nikah provides for payment of the deferred mahr should the marriage end by divorce or death; the parties were divorced by judgment of the Dubai court on 1 November 2016; the divorce is recognised in New Zealand as dissolving the marriage under ss 44 of the Family Proceedings Act 1980.34
[37] In my view, the fundamental legal basis of the claim in the second amended statement of claim remains the same – enforcement of the nikah as a contract or deed between the parties on the basis that: divorce is one of the “two terms” triggering payment of the deferred mahr under the nikah; the parties were divorced by judgment of the Dubai court on 1 November 2016; and the divorce is recognised in New Zealand as dissolving the marriage under ss 44 of the Family Proceedings Act 1980.35
[38] As a result of the Court of Appeal’s decision and the expert evidence subsequently obtained, the claim is now backed up by the addition of new facts pleaded to particularise grounds for the divorce, including the grounds underlying the order of the Dubai court on 1 November 2016, in the event that Ms Almarzooqi is required to prove a particular ground for the divorce after this Court determines the interpretation issue.36 This may involve investigation of the new facts and allegations in the second amended statement of claim, but only if the determination of the interpretation issue requires it.
33 The original statement of claim was rendered inoperative and of no legal effect by the first amended claim – see ISP Consulting Engineers Ltd v Body Corporate 89408, above n 29, at [20].
34 Almarzooqi v Salih (HC), above n 3, at [36].
35 See [36]–[38] of the second amended statement of claim set out above at [9].
36 See [8] and [35] of the second amended statement of claim set out above at [8] and [9].
[39] For the purposes of determining Mr Salih’s application for summary judgment, I am not satisfied that the amendments in the second amended statement of claim have changed the essential nature of Ms Almarzooqi’s claim such that it is so clearly statute- barred it cannot succeed and is “quite clearly hopeless”.37 For example, the claim cannot be statute-barred in so far as Ms Almarzooqi continues to allege, as she does,38 that the fact of the divorce by judgment of the Dubai court on 1 November 2016 is sufficient to trigger payment of the mahr. Ms Almarzooqi must be entitled to have the interpretation issue determined by this Court at a substantive hearing as ordered by the Court of Appeal.
[40] If the outcome of the interpretation issue is that Ms Almarzooqi is required to prove a particular ground for divorce, then Mr Salih’s affirmative defence, that the cause of action based on allegations of abusive treatment is statute-barred, would need to be determined. In this regard, while not accepting that the pleading of the new factual allegations in the second amended statement of claim creates a fresh cause of action which is out of time, Mr Freeman has drawn my attention to s 50 of the Limitation Act 2010.39 This section provides:
50 Discretion to allow relief for ancillary claim when allowed for original claim
(1)This section applies to an ancillary claim made in a civil proceeding commenced in a specified court or tribunal if, and only if,—
(a)relief may be granted in respect of the original claim, because no defence under Part 2 or 3 has been or could be established against it, or because of an order under section 17, 35(5), or 36(4); but
(b)relief cannot be granted in respect of the ancillary claim because a defence under Part 2 or 3 has been or could be established against it, and because no order under section 17, 35(5), or 36(4) allows a court or tribunal to grant monetary relief in respect of it.
(2)The specified court or tribunal may, if it thinks it just to do so on an application made to it for the purpose, order that relief may be granted in respect of the ancillary claim as if no defence under Part 2 or 3 applies to it.
37 Jones v Attorney-General, above n 18, at [10].
38 At [36]-[38] of the second amended statement of claim.
39 J C Corry Limitation Act Handbook (LexisNexis, Wellington, 2011) (Corry) at 127-129; Laws of New Zealand Limitation of Civil Proceedings at [130].
(3)The application for the order must be made before the specified court or tribunal has decided whether the defendant has established a defence under Part 2 or 3 against the ancillary claim.
[41]“Ancillary claim” is defined in s 4 of the Limitation Act:
ancillary claim means a claim that relates to, or is connected with, the act or omission on which another claim (the original claim) is based, and is—
…
(d)a claim that is added to, or substituted for, the original claim; …
[42] Mr Freeman submits that, to the extent that the new factual allegations in the second amended statement of claim create a fresh cause of action and Mr Salih could establish a defence under s 11 of the Limitation Act, the fresh cause of action should be regarded as an “ancillary claim”, and an order made under s 50(2) that relief may be granted in respect of the ancillary claim as if no limitation defence applies to it.
[43] To the extent that there is a fresh cause of action and a defence under s 11 of the Limitation Act could be established against it (and I make no determination in this regard), I consider it is arguable that it would be an “ancillary claim” in terms of the definition in s 4 of the Limitation Act. It is arguable that it is a claim that “relates to, or is connected with,” the act or omission on which the cause of action in the first amended statement of claim (original claim) is based, in that it relates to, or is connected with, the Dubai court judgment on 1 November 2016 which allegedly triggered the obligation on Mr Salih to pay the mahr, and Mr Salih’s failure or refusal to pay the mahr. Further, it is arguable that it has been “added to, or substituted for,” the original claim, in that the original claim has been recast or repleaded to take account of the decision of the Court of Appeal on 15 December 2023 and expert evidence subsequently obtained. It is also arguable that it would be “just” to make an order for relief under s 50(2) for the reasons set out at [30]-[31] above.
[44] Regarding s 50(3), Ms Almarzooqi would need to make an application before it is determined that that Mr Salih has established a defence under s 11 of the Limitation Act against the ancillary claim.40
40 Corry at [50.1.2(f)].
Conclusion
[45] For the reasons set out above, I am not satisfied that Ms Almarzooqi’s claim in her second amended statement of claim is so clearly statute-barred that it cannot succeed and is “quite clearly hopeless”.
[46] Ms Almarzooqi will need to give consideration to whether she needs to make an application under s 50 of the Limitation Act and, if so, when that application should be made.
Application for strikeout
[47] Late last year, I heard applications for strike out of certain paragraphs in Ms Almarzooqi’s second amended statement of claim and the affidavit of her expert, Mr Tariq Saeed, affirmed on 4 April 2024.41 I adjourned the application for strike out of paragraphs [42] and [45] of Mr Saeed’s affidavit. Those paragraphs read as follows:
[42] The Judgment of the Personal Matters Court of Dubai is a divorce for harm, and so is a faskh divorce. It is an irrevocable divorce Talaq-e-bain sughra. That would be recognised as a divorce in the Islamic community in New Zealand.
…
[45] However, the particular quality of the divorce in the Dubai judgment
– an irrevocable divorce – would trigger payment of the mahr in the nikah. The only exception would if the divorce took place by way of a [‘]khul’ or a ‘faskh’ initiated by the husband and where the court has explicitly waived off the mahr partially or in total after recording the grounds for such a decision. That is not the type of divorce pronounced by the Dubai Court.
[48] After discussion with counsel, this final aspect of the defendant’s strike out application has been resolved by consent.
[49] The paragraphs set out above are not struck out on the basis that Ms Almarzooqi acknowledges that the paragraphs cannot be relied on as evidence or proof of the fact of misconduct or fault on the part of Mr Salih, if that is ultimately required to be proved by Ms Almarzooqi.
41 Almarzooqi v Salih (Minute of Associate Judge Skelton), above n 16.
Result
[50] Mr Salih’s application for summary judgment against Ms Almarzooqi is dismissed.
[51] Mr Salih’s application for strike out of [42] and [45] of Mr Saeed’s affidavit affirmed on 4 April 2024 is resolved by consent as set out above at [49].
[52] I have not heard fully from the parties on costs.42 The parties should endeavour to agree costs. However, if agreement cannot be reached, memoranda may be filed not exceeding three pages (excluding costs schedules) and costs will then be determined on the papers.
[53] The matter is to be listed in the next available Associate Judge’s Chambers List for Wellington for a case management conference. The parties are to file a joint memorandum or separate memoranda three working days in advance of the conference addressing all relevant outstanding matters in sch 5 to the High Court Rules 2016 and seeking appropriate directions.
Associate Judge Skelton
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Plaintiff Michael Smith, Wellington for Defendant
42 See Miah v The National Mutual Life Association of Australasia Ltd [2016] NZCA 590, [2017] 2 NZLR 241, at fn 39; Matthew Casey and others Sim’s Court Practice (online ed, LexisNexis) at [HCR 12.12.6].
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