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 is suffering from these harmful acts, I don’t know whether he is supporting her or not, the defendant is dentist but I don’t know his income” The second witness SAEED stated that “the plaintiff is the legitimate wife of the defendant and their marriage is instable due to troubles between them, I heard the defendant insulting the plaintiff and describing her as “whore, animal”, he beat her on her face, he did not support her from the marriage starting date and she is supporting herself from her father funds, the plaintiff is dentist in New Zealand and has his own clinic as the plaintiff informed me”.

As to the plaintiff claim for divorce, section 117 of the said law states:

1)A spouse may claim divorce for harm that renders continuation of their marriage impossible. Such right does not lapse unless waived.

2)The family guiding committee shall act under section 166 to settle dispute, if failed the judge will offer conciliation and if failed and the harm is proved, the divorce shall be granted.

…

The harm which the plaintiff alleged is proved by the witness statements. Witness Amin stated that the defendant used to call her “whore-illegitimate”, he heard him insulting her and he tried to beat her within his presence. Witness SAEED stated that he heard the defendant calling her “whore, animal”, hit her on the face within his presence.

The court should grant divorce if the harm is proved. The harm in this case is sufficiently proved and this court divorces the plaintiff and the defendant and instructs the plaintiff to count her Eda from the date on which the judgment becomes final.

[10]      Thus the  Court  concluded  that  Mr  Salih  had  acted  abusively  towards  Ms Almarzooqi, and that finding appears to have been a necessary basis for the remedies awarded — both the divorce and the monetary remedies.

[11]A copy of the UAE Court judgment was served on Mr Salih on 29 June 2017.

[12]      Against that background, Ms Almarzooqi commences this proceeding against Mr Salih. She pleads two causes of action: a common law claim for the enforcement of the UAE Court judgment and a claim for the enforcement of the contract of marriage and in particular her entitlement thereunder to the payment of the deferred dowry.

[13]      Before this Court for determination is Ms Almarzooqi’s application for summary judgment in relation to the first of those causes of action.1

[14]      Summary judgment is dealt with in pt 12 of the High Court Rules 2016. The principles are summarised in the leading case, Krukziener v Hanover Finance Ltd, where the Court of Appeal said:2

1      Originally, Ms Almarzooqi applied for summary judgment in relation to both causes of action, but she has withdrawn her application in relation to the second.

2      Krukziener v Hanover Finance Ltd (2008) 19 PRNZ 162; [2008] NZCA 187 at [26].

[26]      The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNZ 183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [198] AC 331; [199] 3 WLR 373 (PC), at p 341; p 381. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

[27]      Under r 141A the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.

[15]      Accordingly, in order to succeed on this application, Ms Almarzooqi will need to satisfy the Court that Mr Salih has no arguable defence to her first cause of action. The fact that the Court may be required to determine questions of law does not preclude summary judgment.3

[16]      Although they articulated the principles relating to when the common law will enforce a foreign judgment subtly differently, Mr Freeman for Ms Almarzooqi and Mr Smith for Mr Salih were essentially on common ground as to those principles — though not their application here.

[17]      Mr Freeman described the principles in the following terms in his written submissions.

The common law principles for enforcement of a foreign judgment are well understood and are set out in the Court of Appeal case of Eilenberg v Gutierrez.4 New Zealand will enforce foreign judgments (without further enquiry into the merits) provided that the foreign court had jurisdiction, the judgment is for a definite sum of money, and the judgment is final and conclusive.5

3      See for example Zurich Australian Insurance Ltd v Cognition Education Ltd [2014] NZSC 188, [2015] 1 NZLR 383 at [37].

4      Eilenberg v Gutierrez [2017] NZCA 270.

5 At [30].

[18]      Mr Freeman qualified that general statement of the law by adding that even where those three primary qualifications are satisfied, New Zealand courts will not enforce a foreign judgment where it is apparent that it has been obtained:

(a)in circumstances that constitute a breach of natural justice;

(b)where it has been obtained by fraud;

(c)when its enforcement would be contrary to New Zealand public policy.

[19]      Such matters are, he submitted, for the defendant to establish, at least to the extent of being able to point to credible evidence.

[20]      I did not understand Mr Smith to differ materially from that general description.

Jurisdiction

[21]      The first issue is whether the UAE court had jurisdiction in the particular sense required by New Zealand private international law relating to the enforcement of foreign judgments. In my judgment in relation to an earlier security for costs application, I referred to the Court of Appeal’s judgment in Von Wyl v Engeler where the Court of Appeal said:6

With various exceptions and qualifications a foreign judgment in personam given by the Court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in rr 36–39 of (Dicey and Morris), which is not impeachable under rr 42–45,  is  enforceable  by  action  in  New Zealand (p 461). The foreign court must have had jurisdiction as determined by the New Zealand rules of conflict of laws, rather than according to the foreign courts own law (p 573). Jurisdiction in personam exists where the debtor was present in the foreign country at the time that the proceedings were instituted; or whether the judgment debtor was plaintiff or counterclaimed in the foreign court; or where, being defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings; or before the commencement of the proceedings agreed in respect of the subject-matter of the proceedings to submit to the jurisdiction of that court or of the courts of that country (pp 472, 473) and an agreement to submit may take the form of an agreement to accept service at a designated address (p 483). The corollary under r 42 (p 503) is that a foreign judgment

6      Von Wyl v Engeler [1998] 3 NZLR 416; (1998) 12 PRNZ 187 at 420-421.

is impeachable if the courts of the foreign country did not have jurisdiction to give that judgment in the view of New Zealand law in accordance with the principles set out in rr 36–40; and so where, as submitted here, the defendant did not submit or agree to submit to the jurisdiction of the foreign court.

(Emphasis added)

[22]      In  my  earlier  judgment  I  rejected   submissions   made   on   behalf   of  Ms Almarzooqi that the UAE Court had jurisdiction because, in their agreement to marry, the parties had agreed to submit to UAE jurisdiction and that Mr Salih had voluntarily submitted to the jurisdiction of the UAE Court in this case by attempting to file documentation which was rejected.

[23]      In the  context  of  this  summary  judgment  application  Mr  Freeman  on  Ms Almarzooqi’s behalf advanced the same contentions in addressing the issue of jurisdiction.

[24]In their contract as recorded by the UAE Court, the parties agreed:

This marriage contract is solemnized this Thursday, 23 Saffar 1435 H, corresponding to 26 of December 2013, at Dubai first instance /Sharia Court by judge/Mohammad Eshaq Mal Allah Feroz, by proposal and acceptance, and in accordance with Islamic Sharia, God’s holy book, and the Tradition of His Prophet, to whom all God’s prayers and blessing be, between the two contracting parties.

[25]      Whilst the parties certainly agreed that their rights and obligations would be determined by Sharia law, I do not accept that it necessarily follows that they submitted to the jurisdiction of the UAE courts for the determination of any issues arising out of or in relation to the agreement. That would be to confuse forum conveniens with lex causae. In short, the issues of jurisdiction on the one hand and the applicable law on the other are different.

[26]      I reject the contention that either of these parties agreed in advance that the UAE courts would have jurisdiction in relation to any issues that arose between them.

[27]      In relation to the question of whether Mr Salih may be said voluntarily to have submitted to the UAE Court for the purposes of this proceeding, I do not accept that

his unsuccessful attempt to enter an appearance in the proceeding is sufficient to justify the conclusion that he submitted to the jurisdiction.

[28]      Mr Salih’s affidavit evidence as to the circumstances in which he attempted to involve themselves in the UAE proceeding was in these terms:

5.During 2016 I was served with an application for divorce and accompanying affidavits issued out of the Personal Matters Court, Dubai, a court that administers Sharia-based law. The application had been filed by  the  plaintiff  who  had  travelled  to  Dubai  from  New Zealand to take the action. The plaintiff sought the divorce on that basis that she had suffered domestic abuse from me. In support of her allegations, that I deny, 2 of her brothers gave evidence in the court that they had witnessed my abusing the plaintiff including assaulting and beating her. This evidence is a fabrication. I have only met the brothers briefly when I was in Dubai at the time of our marriage.

6.While I did not object the plaintiff’s application for divorce I objected to the false allegations made about me to secure a monetary award under the marriage contract and I did not want the court to consider the matter on uncontested evidence; I wished to defend myself. I contacted the court to determine what steps I need to take. I was advised that I had to appear in person or instruct a solicitor. I was unwilling to exercise either of those options. I am not a citizen of the UAE, I have never lived there and I have never had an intention of doing so. I know that corruption is rife in the Emirati judicial system as is prejudice against non-Emiratis such as me. I feared that if I travelled to Dubai to defend the application that I would be imprisoned, with or without a trial, until I had paid the monies sought. I had already been threatened by the plaintiff that if I travelled to the UAE I would be prevented from leaving until I had paid her monies and that her family would be able to arrange for my imprisonment. Although I knew she was very capable of lying I knew enough of her family’s standing to believe that these threats could be carried out. I was also unwilling to engage a Dubai based lawyer because it is common knowledge that Emiratis’ lawyers are susceptible to pressure from powerful families and I believe engaging a lawyer would have been an expensive and futile course of action. Instead I instructed my lawyer to prepare documents advising the court I did not oppose the application but opposed the grounds upon which the application was sought and I affirmed in an affidavit accordingly. The English and Arabic copies are attached the plaintiff’s affidavit and marked “D” & “E”. I had the documents translated and certified by Apostille and I forwarded them to a trusted agent to file in the court. When the agent presented to the court t file the documents the registrar refused to accept them leaving them with my agent who returned them to me in a DHL courier pack.

[29]      As I said in my earlier judgment, what this amounts to is that Mr Salih attempted to enter an appearance in the UAE proceeding but that his attempt to do so

was rejected by the official who is the equivalent of the Registrar. The view I take is that that does not amount to a submission to the jurisdiction. That requires a party to take a formal step in the proceeding (other than protesting the jurisdiction). It would be ironic if the defendant, having been prevented from taking any such step, was deemed to have done so by the very actions that were thwarted by the rejection of his documentation.

[30]      Mr Freeman submitted that the question of whether the UAE court had jurisdiction in personam was a red herring because divorce proceedings are proceedings in rem, in relation to which different rules govern the issue of jurisdiction.

[31]      In this regard, he referred to Dicey, Morris & Collins where the authors say that “it may be well, but hardly necessary, to add that a claim in personam does not include a proceeding for divorce or judicial separation”.7

[32]      A judgment granting divorce is a judgment in rem because it addresses the status of the marriage which is a matter affecting not only the parties to the marriage and the litigation, but the world at large.

[33]      Mr Freeman’s contention was that because the primary order made by the UAE court was a declaration of divorce, that put the entire judgment in the category of a judgment in rem.

[34]      Mr Freeman also referred me to s 44 of the Family Proceedings Act 1980 which provides:

44       Recognition of overseas orders

(1)The validity of a decree or order or legislative enactment for divorce or dissolution or nullity of marriage or civil union made (whether before or after the commencement of this Act) by a court or legislature or public authority of any country outside New Zealand shall, by virtue of this section, be recognised in all the courts of New Zealand, where—

(a)one or both of the parties were domiciled in that country at the time of the decree, order, or enactment; or

7      Lord Collins of Mapesbury (ed) Dicey, Morris & Collins The Conflict of Laws (15th ed, Sweet & Maxwell, London, 2012) at 11–002.

…

(ii)in any case, on the basis that one or both of the parties to the marriage or civil union are nationals or citizens of that country or of any sovereign State of which that country forms part; or

…

(2)Nothing in this section shall affect the validity of a decree or order or legislative enactment for divorce or dissolution or nullity of marriage or civil union, or of a dissolution of marriage or civil union otherwise than by judicial process, that would be recognised in the courts of New Zealand otherwise than by virtue of this section.

[35]      Mr Freeman submitted that the aspects of the UAE Court judgment concerning divorce and those concerning monetary relief cannot be “separated or severable”. However, in Ali v Pattni,8 Lord Mance observed that there is no reason why a judgment should be characterised as either wholly in rem or wholly in personam and that it is a matter of analysis what aspects of a judgment operate in rem and what aspects operate in personam. That principle appears to apply most particularly to divorce decrees. In B v Attorney-General9 Willmer L J said that “… it would be absurd to suppose that, because a maintenance order may be embodied in the same document as that which determines the status of the parties it is, therefore, to be regarded as an order binding in rem”.

[36]      The UAE Court’s judgment in this case appears to me to be a judgment in rem insofar as it relates to the status of the marriage and a judgment in personam insofar as it makes ancillary money orders in favour of Ms Almarzooqi against Mr Salih.

[37]      Equally, as Mr Smith submitted, the effect of s 44 of the Family Proceedings Act is limited to the recognition of the status of the marriage and does not extend to ancillary money orders.

[38]      In addressing the issue of jurisdiction Mr Freeman placed some reliance on the Court of Appeal’s judgment in Eilenberg v Gutierrez.10 He said that the facts of that case were paralleled very closely in the present case, as indeed they are. However,

8      Ali v Pattni [2007] 2 AC 85, 103.

9      B v Attorney-General (NEB intervening) [1965] at 278, 284; [1965] 1 All ER 62.

10     Above n 4.

there is a key distinguishing feature. In Eilenberg there was no jurisdictional issue. The judgment debtor was the plaintiff or applicant in the foreign process — the initiator of the proceeding in the first place. There was therefore no doubt that he had submitted to the jurisdiction of the foreign court.

[39]      The question of jurisdiction is quintessentially one of law and therefore one in relation to which that this Court can and should reach a conclusion.

[40]      In my judgement, Ms Almarzooqi cannot establish on the evidence currently before the Court that the UAE court had jurisdiction — in the particular sense necessary in relation to foreign judgments in personam — to make the ancillary money orders it made in her favour against Mr Salih in this case.

[41]      That of course says nothing about whether in fact the judgment of a foreign court pursuant to Sharia law in proceedings which did not raise a jurisdictional issue would be enforceable — as Mr Freeman submits, conventionally in summary judgment proceedings — in this country. My conclusion is strictly limited to the jurisdictional one which arises in the particular circumstances of this case.

[42]      On behalf of Mr Salih Mr Smith also raised issues relating to natural justice, fraud and public policy. Whilst the conclusion I have reached in relation to jurisdiction is sufficient to dispose of Ms Almarzooqi’s summary judgment application, in case I am wrong in relation to that, I go on to deal with these further points.

Procedural fairness or natural justice

[43]      As already mentioned, the UAE Court’s judgment was a default judgment, Mr Salih having been recorded as having taken no part.

[44]      Whether or not a judgment given in one party’s absence constitutes a breach of natural justice principles depends on the circumstances.

[45]      It is elementary that as a matter of natural justice the parties to a dispute before a court, tribunal or other decision-maker must be given notice of the proceedings and given an opportunity to participate — to have their say — in relation to the matter.

But the law has always emphasised that the principle is that a party is given an opportunity, not that the party takes advantage of that opportunity. If a party is given an opportunity to participate and elects not to do so, then it is not a breach of natural justice for the Court to proceed in that party’s absence.

[46]      Accordingly, the issue here is whether Mr Salih had a fair opportunity to take part in the proceeding.

[47]      In my view, principle dictates that if the issue is whether the New Zealand courts are or are not prepared to enforce a foreign judgment for natural justice reasons, then the question of whether or not there has been a breach of natural justice is properly determined by reference to New Zealand principles of natural justice. After all, there seems no reason to judge foreign courts or tribunals by more or less stringent standards than we judge our own – what equates to natural justice at New Zealand law must be the benchmark for whether New Zealand law will sanction the enforcement of a foreign judgment.

[48]      In  this  case,  it  is  not  disputed  that  the  originating  documentation  in  Ms Almarzooqi’s proceeding was formally served on Mr Salih, and therefore that it was open to him to participate in the proceeding.

[49]      His evidence is that he attempted to do so but that the papers he sought to file were rejected because they were said not to comply with the relevant requirements. As a result, he was not notified of what was taking place in the proceeding and did not have an opportunity to have his say.

[50]      For Ms Almarzooqi, Mr Freeman submits that Mr Salih’s assertion in affidavit form that he took that step is incredible. He contends that if Mr Salih had done what he says he did, then there would unquestionably be some record of it – perhaps in the form of correspondence between himself and the Registrar. He submits that given the paucity of evidence, which comes to nothing more than a mere assertion on Mr Salih’s part that he took the steps described, the Court should reject his evidence.

[51]      That submission appears to me to have some force. I pause to observe that if it is correct it would certainly mean that Mr Sahil took no step at all voluntarily to submit to the UAE Court’s jurisdiction. But it is unnecessary to go that far. If the originating documentation in a proceeding has been served in accordance with the rules of court, then it is incumbent on the party served, if he or she wishes to participate in the proceeding, to enter an appearance of one sort or another — usually in the form of a defence. In doing so, the party served must comply with the same rules of court as govern service and if they fail to do so by, for example, attempting to file a non-compliant document, then that document is likely to be rejected. If he or she does not rectify the documents and does not participate in the proceeding, then there is no bar to the Court proceeding to judgment without that party’s involvement.

[52]      Whilst, in such circumstances, an application to set aside the default judgment, at least where the party served can satisfy the Court that he or she has a triable defence, is likely to be successful, in the absence of such a successful application, the Court’s default judgment stands and there is no breach of natural justice involved.

[53]That appears to describe precisely the situation in this case.

[54]      I reject the contention that there is an inherent procedural unfairness or breach of natural justice in this case merely by reason of the fact that this was a default judgment. This conclusion is not inconsistent with my earlier conclusion in relation to the in personam jurisdiction of the UAE Court. My earlier conclusion reflects private international law principles relating to jurisdiction, whereas this conclusion is based on elementary principles of natural justice.

Fraud

[55]      At common law, a judgment obtained by fraud may be set aside. Equally, a foreign judgment obtained by fraud will not be enforced. The reasons for these principles — or this principle, for they are two sides of the same coin — is too obvious to require elaboration.

[56]      On behalf of Mr Salih, Mr Smith submits that there is a triable question as to whether or not this judgment was obtained by fraud.

[57]      It is evident that the UAE Court concluded – and needed to conclude in order to grant the remedies it did — that Mr Salih acted abusively during the course of the marriage. In reaching that conclusion the Court viewed Ms Almarzooqi’s evidence as having been corroborated by that of her brothers.

[58]      Mr Salih’s affidavit evidence in opposition to this summary judgment application is that he only met Ms Almarzooqi’s brothers briefly when he was in Dubai for the marriage. Therefore, Mr Smith submits, the evidence of Ms Almarzooqi’s brothers that they witnessed abuse must have been perjured evidence.

[59]      Accordingly, it is submitted, there is at least a triable argument that the UAE judgment was obtained fraudulently by such perjured evidence and ought not to be enforced in this country.

[60]      I do not accept that contention. The UAE Court had before it Ms Almarzooqi’s own evidence as to the abusive nature of the marriage, and, at very least, the evidence of one of her brothers who visited New Zealand prior to the marriage. The Court was of course entitled to regard Ms Almarzooqi’s evidence as to the abusive nature of the relationship as probative and not easily put aside. Something more than a bare assertion in affidavit evidence is required to establish that a judgment was obtained through fraud. A prima facie case is not required, but there does need to be a sense of “uneasiness.”11 I find myself with no uneasiness here that necessitates a hearing of the allegation.

Public policy reasons

[61]      A New Zealand court will not enforce a final judgment of a foreign court if doing so would be contrary to public policy. However, the public policy exception is limited in scope and is to be narrowly approached.12 While there have been various formulations of the public policy exception,13 the short point is that the threshold for saying a foreign judgment would be contrary to public policy is high. Something

11     Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at 413 citing Svriskis v Gibson [1977] 2 NZLR 4 (CA) at 10-11.

12     Ross v Ross [2010] NZCA 447 at [28].

13     See for example Reeves v One World Challenge LLC [2006] 2 NZLR 184 at [57]-[65] where O’Regan J traversed academic and judicial material on the public policy exception.

beyond the foreign judgment simply originating from a country with different cultural values or legal system is required to engage the public policy exception.

[62]      New Zealand courts have not yet — as far as I am aware — enforced a foreign judgment such as this concerning Islamic traditions around marriage and divorce. However, the English  courts  certainly  have,14  and  I  can  see  no  reason  why  New Zealand courts would not enforce such a judgment. New Zealand places a high value on cultural and religious autonomy. Recognising and enforcing a judgment such as this would reflect this commitment.

Conclusion

[63]      Thus, on the jurisdictional ground alone, my judgement is that the plaintiff cannot succeed on her application and it is dismissed.

[64]Costs are reserved as I have not heard from counsel in relation to these.

Associate Judge Johnston

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for plaintiff Michael Smith Law, Wellington for defendant

14     See for example Shanaz v Rizwan [1965] 1 QB 390; Qureshi v Qureshi [1971] ALL ER 325.