Almarzooqi v Salih - [2020] NZHC 1049

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 1049

BETWEEN RAHLA HUSSEIN AMIN HARDER ALMARZOOQI
Plaintiff

AND

RAFID MOHAMMED SALIH

Defendant

Hearing: 20 March 2020

Counsel:

C T C Bell and R M Stoop for Plaintiff/Respondent M V Smith for Defendant/Applicant

Judgment:

20 May 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] The plaintiff and respondent, Rahla Hussein Amin Harder Almarzooqi, sues the defendant and applicant, Rafid Mohammed Salih, seeking the recovery of a dowry.

[2] What is before the Court for determination at this stage is an application by Mr Salih pursuant to r 5.45 of the High Court Rules 2016 for an order for security for costs.

Background

[3] To a very large extent, the background to the proceeding and this application is common ground.

ALMARZOOQI v SALIH [2020] NZHC 1049 [20 May 2020]

[4] Ms Almarzooqi is a United Arab Emirates citizen, with New Zealand residency. Mr Salih is a citizen of both Iran and New Zealand. On 26 December 2013, the parties were married in the UAE under Islamic law. This involved them in entering into a contract of marriage, a translation of which is before the Court. Amongst other things, this provides that Mr Salih will pay Ms Almarzooqi a “prompt dowry” of 30,000 Dirhams (about $12,725) at the commencement of the marriage and a “deferred dowry” of 500,000 Dirhams (about $212,095) in the event of Mr Salih’s death or the parties’ divorce. For reasons that will become apparent, I mention that, on my reading of the contract, the obligation on Mr Salih’s part to pay the deferred dowry on divorce was not contingent upon separation or divorce being at his instigation.

[5] Mr Salih returned to New Zealand where he lives in January 2014. Ms Almarzooqi moved here to be with him in April 2014. The couple separated in May 2014, so the marriage lasted only five months and the couple only lived together for a month. In December 2015, Ms Almarzooqi travelled back to the UAE to apply for a divorce there. She filed her application on 2 February 2016.

[6] The UAE Court issued its judgment on 1 November 2016. A translation of this is before the Court. It is apparent that it was a default judgment, Mr Salih being treated as not having entered an appearance. The Court 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”. Ms Almarzooqi arranged for the judgment to be served on Mr Salih here in New Zealand on 29 June 2017. At about the same time, Ms Almarzooqi also applied to the Family Court in this country for an order for the dissolution of the marriage, and such an order was made on 22 August 2017.

Ms Almarzooqi’s proceeding

[7] Against that background, Ms Almarzooqi sues Mr Salih and applies for summary judgment pursuant to pt 12…

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 1049
Decision Date: 20 May 2020

CaseChat Overview and Summary

In Almarzooqi v Salih, the High Court of New Zealand was asked to determine whether the defendant should be required to provide security for costs in a dispute over a dowry. Ms Almarzooqi, the plaintiff and respondent, sued Mr Salih, the defendant and applicant, for the recovery of a dowry. The dispute arose from a marriage contract entered into by the parties in the United Arab Emirates (UAE), under Islamic law, which provided for the payment of a dowry in the event of divorce. The couple separated after five months of marriage, and Ms Almarzooqi subsequently obtained a default judgment in the UAE for the deferred dowry. She then commenced proceedings in New Zealand seeking enforcement of that judgment. Mr Salih applied for an order for security for costs, arguing that there was a good prospect that Ms Almarzooqi would be unable to pay any costs awarded against her if she were unsuccessful. The court considered whether there was reason to believe that Ms Almarzooqi would be unable to pay a costs award if she were unsuccessful, and whether it was just in all the circumstances to make an order. The court found that while Ms Almarzooqi's claim was weak, she was legally aided, and it was unlikely that the court would award costs against her if her application for summary judgment were unsuccessful. The court declined to order security for costs against Ms Almarzooqi.

Orders