Brown v Cheung - [2016] NZHC 2408

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
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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 Respondent

Judgment:

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.…

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.

Continue reading Brown v Cheung

Details

AGLC: Brown v Cheung [2016] NZHC 2408
Case: [2016] NZHC 2408
Decision Date: 10 October 2016

CaseChat Overview and Summary

In Brown v Cheung, the High Court considered two applications made pursuant to the Property (Relationships) Act 1976 (Act). First, Ms Cheung sought an interim order allowing her to rent out a property owned by the parties under the management of an independent property manager. Second, Mr Brown applied for an occupation order to allow him to reside in the property. The court also considered Mr Brown’s application to review the Associate Judge’s decision declining to admit his affidavits in the proceeding. The court found 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. The court 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 court concluded that the orders sought by Ms Cheung were also in furtherance of the Court’s powers in s 25(1) and the Act, because they had the effect of preserving the relationship property pending a final determination of the parties’ respective shares, and a division of that relationship property. The court found that the Associate Judge did not err in declining to admit the affidavits in the proceeding. The court found that Mr Brown was unable to understand and comprehend English without the assistance of others and that his affidavits had not been prepared in accordance with 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). As a consequence they were unreliable, and accordingly inadmissible. The court made an order granting possession of the Rua Rd property to Ms Cheung on the basis that the property is to be let and managed by Mission Property Management Ltd (property manager). All rental proceeds, less the property manager’s fees, are to be deposited into the HSBC joint bank account number 30-2934-0484298-088. These orders shall continue pending determination of the substantive proceeding or further order of the Court. Costs and disbursements in relation to the review application and the s 25 application are awarded to Ms Cheung on a category 2B basis.

Orders