Brown v Cheung
[2016] NZHC 2408
•10 October 2016
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-002009 [2016] NZHC 2408
UNDER The Property (Relationships) Act 1976 IN THE MATTER
of Relationship Property Disputes
BETWEEN
TIM BROWN Applicant
AND
QUEENA CHEUNG Respondent
Hearing: 22 August 2016 Appearances:
F C Deliu and D Zhang for the Applicant
R Reed and R P Kaur for the RespondentJudgment:
10 October 2016
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards
On 10 October 2016 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Justitia Chambers, Auckland
Prestige Lawyers Limited, Auckland
BROWN v CHEUNG [2016] NZHC 2408 [10 October 2016]
Introduction
[1] Mr Brown and Ms Cheung are former spouses having separated in mid
2014.1 Together they own two properties comprising of a number of different dwellings, some of which are rented to third parties. A dwelling at one of those properties (Rua Rd property) is currently vacant, and has been since October 2015.
[2] Ms Cheung seeks an interim order pursuant to s 25 of the Property (Relationships) Act 1976 (Act) allowing the Rua Rd property to be rented out under the management of an independent property manager (s 25 application).
[3] Mr Brown opposes that application. He wishes to reside in the Rua Rd property himself and has applied for an occupation order to allow him to do so. However, Mr Brown is currently on EM Bail for charges relating to alleged offending against Ms Cheung. Two applications to vary his EM Bail conditions to allow Mr Brown to reside at the Rua Rd property have been declined.
[4] By judgment dated 9 June 2006, Associate Judge Doogue ruled on two preliminary issues raised by Ms Cheung’s s 25 application. First, the Associate Judge held that there was jurisdiction for the Court to make an interim order relating to the management of the Rua Rd property under s 25(3) of the Act. Second, he determined that affidavits sworn by Mr Brown in English in support of his cross-application for orders were inadmissible, as Mr Brown did not have the necessary proficiency to swear the affidavits in English. The s 25 application was not finally determined.
[5] Mr Brown applies to review Associate Judge Doogue’s decision. That application was heard together with Ms Cheung’s s 25 application and Mr Brown’s application for an occupation order.
Background
[6] Mr Brown and Ms Cheung were married in 2011 and moved from China to
New Zealand shortly afterwards. They jointly own properties in Auckland located in
1 The names used in this judgment are fictitious names used for the purposes of anonymisation.
Waipa Rd and Rua Rd. Ms Cheung currently lives in one of the dwellings at the Waipa Rd property. The Rua Road property comprises two dwellings. The front dwelling is let to a childcare centre. The back dwelling is currently vacant. The purchase of both properties was primarily financed by mortgages from HSBC Bank. Mortgage payments and maintenance costs for the properties are deducted from the parties’ joint HSBC account.
[7] The parties separated in 2014 and signed a separation agreement in September 2014. Pursuant to that agreement the Rua Rd property was to become Mr Brown’s property, and the Waipa Rd property was to become Ms Cheung’s property. Mr Brown now alleges that he entered into the agreement under duress and seeks an order setting it aside, together with other orders relating to the relationship property. The proceeding has been set down for a three day hearing commencing on
27 March 2017.
[8] The charges Mr Brown is currently facing relate to alleged offending against Ms Cheung in 2014 and 2015. The charges are injuring with intent to injure, assault with intent to injure, two counts of threatens to kill, breach of protection order and kidnapping. Mr Brown has been on EM bail in relation to the charges since August
2015. A five day trial in the Auckland District Court is currently scheduled to start on 21 November 2016.
[9] The back dwelling at Rua Road was tenanted until October 2015. The tenant moved out following a number of letters sent by, or on behalf of, Mr Brown seeking to terminate that tenancy. Mr Brown sought to move into the property himself, but his EM bail variation application was declined in December 2015. A subsequent application was also declined in February 2016. Mr Brown alleges that this was due to interference from Ms Cheung. Ms Cheung denies any interference and says the applications were declined due to the high risk of harm and re-offending posed by Mr Brown; the fact that the property is co-owned; and the unsuitability of the address.
[10] Ms Cheung has been managing the rental properties to date. She says she has been covering the $440 per week shortfall in mortgage and maintenance payments
since the Rua Road tenant moved out. She has had to borrow funds to enable her to do that and to prevent the property from being sold at mortgagee sale. She seeks an interim order to provide some rental income in order to cover the shortfall pending the substantive hearing.
[11] Mr Brown does not believe that there is a shortfall and resists paying market rent or any other payments should he be granted occupation of the property. He says that he should be able to reside at the Rua Rd property rent free, as Ms Cheung is currently residing at the Waipa Rd property and not paying rent.
[12] A measure of agreement was reached between the parties prior to the hearing. Ms Cheung agreed that Mr Brown could live at the Rua Road property if a further EM bail variation application was successful and subject to Mr Brown paying market rent or covering the shortfall until the substantive hearing. Mr Brown however refuses to pay market rent or cover any shortfall. Mr Brown agreed that if a further EM bail application was unsuccessful the property could be rented out under the management of a property manager in the interim.
[13] Following the hearing, I sought further information from both parties as to the form of orders each of them sought. I also sought information from Mr Brown regarding the criminal charges he faces. In the course of receiving that further information I was advised that Mr Brown had applied on 18 August 2015 to change his EM bail address to a different address in Henderson. That application was successful. Mr Brown says that this does not affect his ultimate desire to live at the Rua Road property.
Associate Judge Doogue’s decision
[14] The Associate Judge commenced his analysis of the jurisdictional issue by reviewing the provisions of the Act, noting that it did not explicitly deal with the management of real property on an interim basis. Nevertheless, the Judge considered the type of order sought would not be inconsistent with the objectives, purpose and principles of the Act.
[15] The Judge held that a flexible approach to s 25 was required and that the terms of s 25 were wide enough to embrace the type of order sought by Ms Cheung. The Judge gained support for that view from the case of LH v BAH.2 In that case the Family Court made a possession order under s 25(3) to allow the wife to let out the family holiday home prior to the substantive hearing.
[16] As a result, the Judge concluded that there was jurisdiction under s 25 to grant the order sought.
[17] As to Mr Brown’s affidavits, the Judge noted his view that emails disclosed at the hearing were enough to raise a concern about Mr Brown’s proficiency in the English language.
[18] He recorded that he had asked Mr Brown to answer questions from the witness box about his facility in English. At Mr Brown’s request, his counsel had translated the questions and his answers. The essence of Mr Brown’s evidence was that he could not speak English well but was able to make sense of written documents by reading the document himself, consulting a dictionary, and through the assistance of his present wife. Further, Mr Brown had said that he had undertaken an English language test and had scored four and a half out of nine for reading English.
[19] When asked about the process that he followed in regard to the affidavits, Mr Brown had stated that he had prepared his affidavits by writing what he wanted to say in Mandarin and taking it to his counsel, who had rendered the affidavits in English. Mr Brown then followed the same process he used when reading English documents, that is, using his dictionary and help from his present wife to understand it.
[20] The Associate Judge reviewed the requirements relating to affidavits in the
High Court Rules (rr 9.73, 9.76, 9.84 and 1.15) and the Oaths and Declarations Act
1957. The Judge considered that Mr Brown was “materially illiterate” in English and his full understanding dependent upon third parties’ advice. The crux of the
Associate Judge’s reasoning was set out as follows:
2 LH v BAH FC Christchurch FAM-2010-009-1775, 23 December 2010.
[50] The deponent in this case, by his own admission, is only able to understand about 50 per cent of a document that is written in English. I understand that his evidence is that he can reach completion of understanding by using a computer-based translation device, his dictionary and with the assistance of his present wife. The level of literacy of the deponent is such that he would have an incomplete understanding of the affidavit unless it was explained to him. It does not comply with the explicit wording of the rule or with the spirit and objectives of the rule, for a deponent who has severe difficulty reading, as I have explained that term above, to affirm an affidavit on the basis that he has an understanding of it based upon the combined process of his reading it, using a computer application and by having it explained to him (to the extent that he could not understand it), by third parties on some previous occasion. That does not represent compliance with the rule.
[21] The Judge concluded that the steps taken by Mr Brown were insufficient to satisfy the requirements for a valid affidavit and accordingly those affidavits were not to be read in the proceeding.
Approach on review
[22] Section 26P of the Judicature Act 1908 provides the right for a party to apply to the High Court to review any order or decision made by an Associate Judge in chambers.3 Pursuant to r 2.3(4) of the Rules, as the Associate Judge’s decision was made following a defended hearing and supported by documented reasons, the review proceeds as a rehearing.
[23] A review is essentially appellate in nature with the starting point being the Associate Judge’s decision.4 The Court reviewing the decision will apply the approach in Austin, Nichols & Co Inc v Stichting Lodestar and make its own assessment as to whether that decision is wrong.5
Jurisdiction under s 25(3)
[24] Section 25 of the Act provides as follow:
25 When court may make orders
3 Rule 7.34 of the High Court Rules provides that an interlocutory application for which a hearing is required must be heard in chambers unless a Judge otherwise directs. As there was no contrary direction in this case the judgment is therefore subject to review.
4 Perriam v Wilkes [2014] NZHC 2192 at [4].
5 Burmeister v O’Brien [2008] 3 NZLR 842 (HC) at [29].
(1) On an application under section 23, the court may—
(a) make any order it considers just—
(i) determining the respective shares of each spouse or partner in the relationship property or any part of that property; or
(ii) dividing the relationship property or any part of that property between the spouses or partners:
(b) make any other order that it is empowered to make by any provision of this Act.
(2) The court may not make an order under subsection (1) unless it is satisfied,—
(a) in the case of a marriage or civil union,—
(i) that the spouses or civil union partners are living apart (whether or not they have continued to live in the same residence) or are separated; or
(ii) that the marriage or civil union has been dissolved; or
(b) in the case of a de facto relationship, that the de facto partners no longer have a de facto relationship with each other; or
(c) that one spouse or partner is endangering the relationship property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings; or
(d) that either spouse or partner is an undischarged bankrupt.
(3) Regardless of subsection (2), the court may at any time make any order or declaration relating to the status, ownership, vesting, or possession of any specific property as it considers just.
(4) To avoid any doubt, but without limiting subsection (3), if proceedings under this Act are pending, the court, if it considers it appropriate in the circumstances, may make an interim order under that subsection for the sale of any relationship property, and may give any directions it thinks fit with respect to the proceeds.
(5) This section is subject to the other provisions of this Act.
(6) In proceedings commenced after the death of one of the spouses or partners, this section is modified by section 91.
[25] Mr Brown submits that the jurisdiction to make orders under s 25(3) only extends to orders which may be made under s 25(1), and which will have final effect.
He further submits that there is no jurisdiction to make the orders sought as they vest property in a third party.
[26] As observed in commentary on s 25, the interrelationship between s 25(3)
and s 25(1) is uncertain.6 Cases concerning s 25 of the Matrimonial Property Act
1976 have held that s 25(1) is the empowering provision, and s 25(3) is supplementary to that section.7
[27] Section 25 of the Matrimonial Property Act did not contain subs (4) which provides an express power to make an interim sale order pursuant to subs (3) and without limiting that subsection. Similarly, s 10C(b) of the Act also confirms that the Act applies in the circumstances set out in s 25(3); and s 23(1) lists those people who may apply “for an order under section 25(1)(a) or (b) or an order or declaration under section 25(3).” Those provisions suggest that subs (3) has greater independence from s 25(1) than the earlier cases found.
[28] In any respect, those earlier cases do not stand for the propositions advanced by Mr Brown in my view. They need to be considered in their factual context. Both ANZ Banking Group (New Zealand) Ltd v Wrightson and Hall v Hall concerned orders vesting relationship property in third parties; and Burton v Burton concerned a “possession order” of money which was twice what the party receiving it would have been entitled to on final distribution. Those cases clearly fell outside the jurisdiction afforded by either s 25(3) or s 25(1) and the Act in general.
[29] The findings in those cases do not mean that jurisdiction is limited to orders only having final effect or that the form of order must be a determination or a division of relationship property. Such an interpretation would put a restrictive gloss on s 25(3) which is not apparent on its face, and would be at odds with the very wide
powers afforded by that subsection.8
6 Nicola Peart (ed) Brookers Family Law – Family Property (online looseleaf ed, Thomson
Reuters) at [PR25.09].
7 ANZ Banking Group (New Zealand) Ltd v Wrightson (1992) 9 FRNZ 1 (HC) at 6 and 8; Hall v
Hall (1989) 5 FRNZ 309 (FC) at 313; and Burton v Burton (2001) 21 FRNZ 454 (HC) at [18].
8 See Murray v Murray (1989) 5 FRNZ 177 (CA) at 179; and Heap v Harford [2016] NZHC 1709 at [7].
[30] I consider the orders sought by Ms Cheung to fall within s 25(3). They relate to the possession of the property as provided for in that subsection. In A v A, an order allowing the management of relationship property by an independent manager was made pursuant to s 25(3). After referring to the definition of “possession” in the New Shorter Oxford English Dictionary (1993), Giles J said:9
In my view, the concept addressed in s 25(3) is broad enough to encompass the exercise of control over property, in addition to the concept of the right to occupy. I so hold. On that basis, there is jurisdiction under s 25(3) to appoint a manager to take possession of (ie to control) specific property. The fact of the matter in this case is that a great many of the properties with which I am concerned are not physically occupied by either husband or wife; they are tenanted. So “possession” in the strict meaning of “actually occupying” has no application.
[31] I respectfully adopt that reasoning in this case.
[32] The orders sought by Ms Cheung are also in furtherance of the Court’s powers in s 25(1) and the Act, because they have the effect of preserving the relationship property pending a final determination of the parties’ respective shares, and a division of that relationship property.
[33] The concerns which are present in the interim distribution cases, and those involving third parties, are not present in this case. The order will not result in a dissipation of the relationship property, or give one party more than it might otherwise be entitled to on final division. Contrary to Mr Brown’s submission, I do not consider the order will vest the property in a third party, or is otherwise for the benefit of that third party. Income from renting the properties is to the joint benefit of both Mr Brown and Ms Cheung.
[34] Finally, orders of the type sought by Ms Cheung have been made in previous cases. The Associate Judge relied on LH v BAH, but, as discussed, this Court’s decision in A v A is also directly on point.10
9 A v A (1997) 16 FRNZ 117 (HC) at 124–125.
10 LH v BAH, above n 2; and A v A, above n 9.
[35] I therefore agree with the Associate Judge that there is jurisdiction under s 25(3) to make the orders sought. This aspect of the review application is accordingly dismissed.
Admissibility of Affidavits
[36] Mr Brown challenges the Associate Judge’s decision ruling his affidavits
inadmissible on both procedural and substantive grounds.
[37] In terms of procedural defects, Mr Brown submits that there was no notice of the application in relation to the affidavits; no application to cross-examine; and Mr Brown was made to bear the onus of proving his English literacy. As a result, Mr Brown submits that the Associate Judge did not have jurisdiction to rule the affidavits inadmissible.
[38] Whilst it would have been preferable for Ms Cheung to raise the challenge earlier, I do not consider the Associate Judge was deprived of jurisdiction to deal with it on the day. Nor do I consider that Mr Brown’s natural justice rights were breached. He was afforded an opportunity to put his case and provide an explanation for the process by which the affidavits had been prepared. His counsel was also afforded the opportunity to examine Mr Brown and to raise objections to questions put in cross-examination. The witness examination was conducted fairly.
[39] The fact that the Associate Judge placed reliance on Mr Brown’s evidence regarding his English language capabilities does not mean that the onus was reversed. Mr Brown’s competencies in English language were at the heart of the challenge and Mr Brown was in the best position to give evidence about that issue.
[40] I do not consider there to be any procedural defects which caused the
Associate Judge to err in ruling the affidavits inadmissible.
[41] Mr Brown’s substantive challenge is mounted on a number of different
grounds.
[42] First, he claims that the Judge based his finding that Mr Brown was “materially illiterate” on an assessment of his oral language skills when he gave evidence from the witness box. I do not agree. As is evident from paragraph [50] of the Judge’s decision,11 his assessment of Mr Brown’s competencies in reading and understanding English were based on Mr Brown’s own evidence about the score he had received for reading English (four and a half out of nine) at an English language
course, and the procedure he had adopted in preparing the affidavits. No reliance was placed on his English speaking competencies in making the assessment.
[43] Second, Mr Brown submits that the Associate Judge erred in finding that there was no room for the intervention of a third party to explain evidence provided in an affidavit. Mr Brown points to the use of a translator and an interpreter under rr 1.15 and 9.84 as examples of third party intervention. I do not consider the Judge erred. It is clear from the context that the Associate Judge was saying that the High Court Rules do not allow for third party intervention except in the particular circumstances provided for in r 1.15 (where a non-English language affidavit is provided), and r 9.84 (where the deponent is either blind or illiterate). These two rules set out specific procedures where third party intervention is allowed.
[44] Third, Mr Brown says that the Judge’s conclusion was wrong in law because a breach of the Oaths and Declarations Act was not established. I do not agree with this submission either. The Oaths and Declarations Act and the High Court Rules are designed to safeguard the reliability of the evidence offered in affidavit form. If deponents are relying on third parties to prepare their affidavits there is a risk that the evidence is not in fact their own and they do not have a full appreciation of that to which they are deposing to be true.
[45] Mr Brown’s own evidence suggests that he was unable to understand and comprehend English without the assistance of others. I agree with the Associate Judge that this directly engages the purpose behind the Rules governing affidavits by deponents who are either blind or illiterate (r 9.84), or those who provide their affidavit in a non-English language (r 1.15). Mr Brown’s affidavits had not been
prepared in accordance with these Rules. As a consequence they were unreliable,
11 Reproduced at [20] above.
and accordingly inadmissible. Establishing a separate breach of the Oaths and
Declarations Act was not a pre-requisite to the Associate Judge’s ruling.
[46] The fourth and fifth grounds of challenge relate to the Judge’s reliance on Re Longstaffe.12 Mr Brown submits that neither party provided the case to the Court, and the Judge appears to have relied on commentary about the case. Further, the case was decided in the 19th century, and the draconian approach applied runs contrary to the approach now adopted in New Zealand. I do not accept these submissions. The case was on point and the Judge was entitled to rely on it to support the position
reflected by the Rules that affidavits prepared in this manner are unreliable. In any event, reliance on this case did not ultimately lead the Judge into error as the conclusions reached were available even if this case had not been relied upon.
[47] The final ground of substantive challenge was on the basis that the ruling was “unjust” and “unworkable” as a precedent. It follows from the above that I reject those grounds of review. In my view the Associate Judge did not err in declining to admit the affidavits in the proceeding.
[48] This aspect of the review application is also unsuccessful.
Possession of Rua Rd
[49] Ms Cheung’s application pursuant to s 25 was argued in the event that I found that the Associate Judge correctly decided that there was jurisdiction under s 25(3) to make such an order (as I have so found).
[50] Mr Brown was not prejudiced in opposing the s 25 application. In a minute dated 23 June 2016, Palmer J directed Mr Brown to file replacement affidavits to allow the application to proceed. Mr Brown filed such affidavits and Ms Cheung did not object to them.
[51] Given the measure of agreement reached between the parties prior to the hearing, the key issue for determination is whether Mr Brown should have
12 Re Longstaffe (1884) 52 LTR 681.
occupation of the property rent free or subject to terms, or whether it should be rented to a third party pending determination of the substantive proceeding.
[52] In SM v LFDB, Ellis J set out a number of factors relevant to the exercise of the discretion under s 25(3) to grant an interim distribution order.13 These include:14
(a) any possible prejudice that might arise from the making of a proposed order;
(b) the purpose and principles of the [Act] including in particular the need to do justice between the parties;
(c) the needs and circumstances of the applicant;
(d) the purpose for which the distribution is sought;
(e) the applicant’s likely share of the relationship property;
(f) the respondent’s ability to give effect to an order at that time;
(g) the length of time until the substantive claim is likely to be heard;
(h) any delays in proceedings to date and whether those delays are attributable to either of the parties; and
(i) whether an interim distribution will cause further delays in finally determining the relationship property claim.
[53] These factors are equally applicable to other forms of orders sought under s 25(3), and provide a useful rubric to assess the competing merits of both Ms Cheung and Mr Brown’s applications.
[54] In terms of prejudice, Mr Brown submits that a s 25 order will prejudice him because he is paying rent to occupy another property when he could be living rent free in his own property at Rua Road.
[55] That prejudice needs to be seen in context. The property was formerly rented, but the tenant left following Mr Brown’s unilateral actions. Furthermore, whether Mr Brown can occupy that property depends on whether a subsequent EM bail application is successful. Two previous applications have been declined. There
is no evidence supporting the assertion that Mr Brown intends to make an
13 SM v LFDB [2013] NZHC 1056.
14 At [30].
application in relation to that property in the short term, and no certainty that it will be granted.
[56] Furthermore, any prejudice to Mr Brown is mitigated by the fact that income generated by rental of the property will be to his benefit. Any ultimate division of that property will fall to be determined at the same time that there is a final division of property and a necessary accounting of post-separation contributions.
[57] The prejudice to Ms Cheung and her needs and circumstances also need to be considered. Ms Cheung is currently borrowing money in order to meet a shortfall in mortgage repayments. Whilst Mr Brown does not accept there is such a shortfall, I have no reason to disbelieve Ms Cheung’s affidavits in that respect. Furthermore, it would appear that the shortfall in the mortgage payments is placing the property at risk of mortgagee sale. An order granting occupation to Mr Brown with no requirement to pay rent would not address that significant prejudice.
[58] Mr Brown is likely to obtain ownership of the Rua Rd property whether he is successful in overturning the relationship property agreement or not. His likely share of relationship property therefore favours an occupation order over the s 25 order.
[59] There are real doubts about Mr Brown’s ability to give effect to an occupation order should one be granted. That is because occupation is dependent on the outcome of a further EM bail variation application. As far as I am aware, that application has not been made and there seems no present intention to make any application in the near future.
[60] The prospects of any application being granted at this late stage seem remote. Such an application has been declined on two prior occasions. Whilst Mr Brown blames interference by Ms Cheung for that position, it may equally be due to other factors associated with the suitability of the address. Further, if Mr Brown is ultimately found guilty of the alleged offending, and a sentence of imprisonment imposed, he may be unable to occupy the property and the property would become vacant again. In the circumstances, I am left with no confidence that even if an
occupation order was to be made in favour of Mr Brown, that it could be given effect to, at least in the short term.
[61] In terms of the length of time until the hearing, the substantive hearing is set down for 27 March 2017. The property has been empty since October 2015. In those circumstances, even a short term rental until the hearing is preferable to leaving the property unoccupied.
[62] Both parties accuse each other of delays in the proceeding. I am unable to determine responsibility for such delays in the context of this interlocutory application. However, for reasons already discussed, Mr Brown’s EM bail status and forthcoming criminal trial are likely to cause further delays should an occupation order be granted. That weighs in favour of a s 25 order in my view.
[63] Weighing these factors in totality, I consider an order under s 25(3) permitting the property to be tenanted to a third party is preferable to an occupation order which could only be conditional on the outcome of an EM bail application yet to be made, and with little prospect of success.
Costs
[64] Ms Cheung is the successful party on both the review application and the application for orders under s 25 of the Act. She is entitled to category 2B costs in relation to both those applications.
[65] Although Ms Cheung also succeeded in defending Mr Brown’s cross- application for an occupation order, those costs were effectively the same as the costs incurred in respect of the s 25 application. Accordingly, I decline to award costs in relation to that cross-application.
[66] In a memorandum of counsel received after the hearing, Ms Cheung sought increased or indemnity costs for Mr Brown’s failure to inform the Court that he had, prior to the hearing, applied for a bail variation to another address. I agree with Ms Cheung that, given the importance of EM bail, this information should have been placed before the Court. However, I am not persuaded that the failure to do so
resulted in any delays, or additional costs, being incurred. I therefore decline the application for increased or indemnity costs for that conduct.
[67] Following Associate Judge Doogue’s decision, and prior to the hearing, further directions Ms Cheung sought in relation to the provision of affidavits by Mr Brown in support of his application for review. By minutes dated 20 July 2016, Lang J awarded costs to Mr Brown in relation to those directions, but made such an order subject to any decision on the review. By minute dated 3 August 2016, Heath J reserved costs in relation to an application by Ms Cheung for leave to cross-examine Mr Brown in his application for review of the Associate Judge’s decision. That application did not, in any event, proceed.
[68] Ms Cheung has ostensibly succeeded in her opposition to the review, and accordingly, Ms Cheung is relieved of the obligation to pay costs in accordance with Lang J’s minute. Similarly, as the application to cross-examine did not proceed, no costs are payable by either party in relation to that application either.
Result
[69] The application for review of the Associate Judge’s decision is dismissed.
[70] The application for orders pursuant to s 25(3) and s 33 of the Act is granted. I
make the following orders:
(a) Possession of 43A Rua Road is granted to Ms Cheung on the following basis:
(i) The property is to be let and managed by Mission Property
Management Ltd (property manager).
(ii)No capital expenditure of any kind shall be incurred in relation to the property without the prior written consent of both parties;
(iii)Any repair or maintenance obligation in excess of $500 in respect of the property shall not be incurred without the prior written consent of both parties;
(iv) All rental proceeds, less the property manager’s fees, are to be
deposited into the HSBC joint bank account number
30-2934-0484298-088.
(b)These orders shall continue pending determination of the substantive proceeding or further order of the Court.
[71] Costs and disbursements in relation to the review application and the s 25 application are awarded to Ms Cheung on a category 2B basis. No costs are payable by either party pursuant to Lang J’s minute of 20 July 2016, or Heath J’s minute of
3 August 2016.
Edwards J
2
0