Almarzooqi v Salih - [2020] NZHC 2441

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-751

[2020] NZHC 2441

BETWEEN RAHLA HUSSEIN AMIN HARDER ALMARZOOQI
Plaintiff

AND

RAFID MOHAMMED SALIH

Defendant

Hearing: 13 August 2020

Appearances:

M Freeman for plaintiff M Smith for defendant

Judgment:

18 September 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] The plaintiff, Ms Rahla Almarzooqi, seeks summary judgment in relation to one cause of action pleaded by her in her claim against the defendant, Mr Rafid Salih.

[2]The background to the litigation is uncontroversial.

[3] Ms Almarzooqi is a United Arab Emirates’ citizen. As I understand it she has residency status in this country. Mr Salih is an Iranian and New Zealand citizen. Both live here.

[4] On 26 December 2013, the parties married in the UAE in accordance with Islamic or Sharia law.

[5] This involved them entering into a contract of marriage, which was solemnised in an order of the Dubai Personal Matters Court. This order provided, amongst other

ALMARZOOQI v SALIH [2020] NZHC 2441 [18 September 2020]

things, that Mr Salih would pay Ms Almarzooqi a “prompt dowry” of 30,000 dirhams (approximately $12,725) at the commencement of the marriage and a “deferred dowry” of 500,000 dirhams (approximately $212,095) in the event of the parties’ divorce.

[6] In January 2014 Mr Salih returned to New Zealand. Ms Almarzooqi followed in April 2014. They separated in May 2014. The marriage was thus of very short duration.

[7] In December 2015 Ms Almarzooqi returned to the UAE in order to apply for a divorce. Her application to the UAE Court was dated — and presumably also filed on
— 2 February 2016. It is common ground that the originating documentation was served on Mr Salih in New Zealand. The Court issued its judgment on 1 November 2016. In New Zealand terms, this was a default judgment.

[8] The Court granted the divorce sought and ordered Mr Salih to pay Ms Almarzooqi the deferred dowry of 500,000 dirhams, 3,000 dirhams for “alimony support” and 7,500 dirhams for “housing support” (a total of approximately
$216,493.00.)

[9] The grounds upon which the Court reached the conclusions it did are captured in the following (translated) passages from the judgment:

The counsel for the plaintiff appeared at the hearing dated 27/09/2016 while the defendant did not although duly summoned. The counsel for the plaintiff upheld their claims and added that the defendant used to beat and insult her by saying she is a whore, illegitimate and that the continuation of their marriage becomes impossible. The court offered conciliation to the present party. The plaintiff appeared on 18/10/2016 and stated that no settlement is reached. The court hear statements of witnesses SAEED HUSSAIN AMIN ALMARZOOQI AMIN stated that “the defendant is the husband of the wife under valid marriage contract, their life is instable, he used to call her “whore, illegitimate”, I personally heard him insulting her, he tried to beat her and pushed her in my presence, she…

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: [2020] NZHC 2441
Decision Date: 18 September 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Rahla Almarzooqi, a United Arab Emirates’ citizen with residency status in New Zealand, sought summary judgment against Mr. Rafid Salih, an Iranian and New Zealand citizen, for the enforcement of a UAE court judgment in relation to their marriage and divorce. The marriage was solemnized in accordance with Islamic or Sharia law in Dubai in 2013, with a contract that included provisions for prompt and deferred dowries. The marriage ended in divorce in 2016, with the UAE court ordering Mr. Salih to pay the deferred dowry and other monetary relief to Ms. Almarzooqi. Ms. Almarzooqi now sought to enforce this UAE judgment in New Zealand.

The court had to decide whether New Zealand would enforce the UAE court judgment under the common law principles for the enforcement of foreign judgments. The court found that the UAE court did not have jurisdiction over the ancillary money orders it made in Ms. Almarzooqi's favour against Mr. Salih, as the parties had not agreed to submit to the jurisdiction of the UAE courts. Additionally, the court found that there was no breach of natural justice in the UAE court's proceedings, as Mr. Salih had an opportunity to participate but chose not to. The court also found that there was no evidence of fraud in obtaining the UAE judgment, and that enforcing the judgment would not be contrary to New Zealand public policy.

The court dismissed Ms. Almarzooqi's application for summary judgment, as it could not be established that the UAE court had jurisdiction over the ancillary money orders, and therefore the judgment could not be enforced in New Zealand. Costs were reserved.

Orders