Chen v Zeng - [2017] NZHC 1721

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.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002997 [2017] NZHC 1721

UNDER THE Property (Relationships) Act 1976

IN THE MATTER OF

an appeal against a decision of the Family
Court

BETWEEN

YING CHEN Appellant

AND

WEN ZENG Respondent

Hearing: 29 June 2017

Appearances:

A Manuson for the Appellant
L Kearns for the Respondent

Judgment:

25 July 2017

JUDGMENT OF DUFFY J

This judgment was delivered by me on 25 July 2017 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Prestige Lawyers Ltd, Auckland
Philip Lee Law, Auckland
L Kearns, Auckland

CHEN v ZENG [2017] NZHC 1721 [25 July 2017]

[1] The parties in this appeal are former spouses who are presently engaged in a relationship property dispute in the Family Court. The issue on appeal is whether the respondent, Mr Zeng, has provided adequate discovery.

[2] The appellant, Ms Chen, considers that Mr Zeng has not properly complied with directions made by Judge Manuel requiring Mr Zeng to provide discovery of certain material.1 Ms Chen asserts this material is required by her forensic accounting expert (Mr Sutherland) and without it he cannot form a view on the value of certain property held by Mr Zeng.

[3] Ms Chen made her complaint about the inadequacy of Mr Zeng’s discovery to the Family Court. Judge Malosi rejected Ms Chen’s complaint and found that there was sufficient information available for both parties to be assured of a fair trial.2 The completion of Mr Sutherland’s report was delaying progress of the dispute. Judge Malosi directed Ms Chen to have Mr Sutherland finalise his report. Ms Chen appealed against this decision.

[4] On appeal Mr Zeng argued that he has provided all that he has been required to provide to Ms Chen by way of discovery. Accordingly he opposed the appeal.

[5] The short point for me to determine on appeal was whether Judge Malosi was right to refuse to make further orders for discovery against Mr Zeng.

[6] At the appeal hearing I was faced with competing arguments from the parties’ counsel regarding the adequacy of the discovery by Mr Zeng. Mr Sutherland provided an affidavit (dated 17 April 2017) in which he said he had not seen sufficient information to enable him to form an opinion on the value of some property in Mr Zeng’s possession.

[7] I was faced with an assertion by an independent expert witness that he had insufficient information to enable him to prepare evidence on value. I considered the

1 The required material is identified in [5] of Judge Manuel’s minute dated 20 May 2016 in Chen v
Zeng FC Auckland FAM-2015-004-1068.
2 See [10] of Judge Malosi’s minute dated 9 November 2016 in Chen v Zeng FC Auckland FAM-
2015-004-1068.

best approach…

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 Chen v Zeng

Details

AGLC: Chen v Zeng [2017] NZHC 1721
Case: [2017] NZHC 1721
Decision Date: 25 July 2017

CaseChat Overview and Summary

In Chen v Zeng, the appellant, Ms Chen, appealed against the Family Court's decision to refuse further discovery from the respondent, Mr Zeng. The parties were former spouses engaged in a property dispute. The primary issue was whether Mr Zeng had provided adequate discovery of certain material required by Ms Chen's forensic accounting expert, Mr Sutherland. Ms Chen claimed that the material was necessary for Mr Sutherland to form an opinion on the value of certain property held by Mr Zeng. The Family Court found that sufficient information was available for both parties to ensure a fair trial and dismissed Ms Chen's complaint. The High Court was required to determine if the Family Court's decision to refuse further discovery was correct. The High Court appointed an independent inquirer, Mr Goodall, to assess the adequacy of the discovery provided by Mr Zeng. Mr Goodall found that further information was required. However, the court found that Ms Chen had not efficiently communicated her requests for discovery to Mr Goodall, which had led to unnecessary delays. Consequently, the court decided that while additional discovery was needed for the Schedule 10 transactions, Ms Chen's dilatory approach regarding the Schedule 11 transactions disqualified her from obtaining further discovery on those terms. The appeal was allowed, and the order refusing further discovery was set aside. Mr Zeng was required to provide the material relevant to the Schedule 10 transactions if he had not already done so. Costs on the appeal were to lie where they fell, but the parties could file memoranda on the question of sharing the costs of obtaining Mr Goodall’s reports.

Orders