Chi v Yan - [2019] NZHC 3489

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1944

[2019] NZHC 3489

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal

BETWEEN

TYRONE NGAE CHI

First Appellant

KO HOE NGAE
Second Appellant

CHING YUN KONG
Third Appellant

AND

AMANDA KOH SHEE YAN

Respondent

Hearing: On the papers

Counsel:

D Zhang and S Boon for appellants

NA Farrands and PWG Ahern for respondent

Judgment:

20 December 2019

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on 20 December 2019 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Amicus Law, Auckland (R Zhao)
Morrison Kent, Auckland

Ngae v Koh [2019] NZHC 3489 [20 December 2019]

Introduction

[1] The first appellant, Mr Ngae, and the respondent, Ms Koh, were previously in a de facto relationship. When that relationship came to an end, issues arose as to whether they had indeed been in a de facto relationship, and if so, what the appropriate division of relationship property should be. The key asset in question is a residential property in Mt Wellington (the Property) of which Mr Ngae and Ms Koh are registered proprietors. The second and third appellants, Mr Ngae’s parents, argued that the Property was in fact held (in its entirety) on trust for them.

[2] These matters were the subject of a claim in the Family Court. In resolving that claim the Family Court Judge held that there was a de facto relationship, and made rulings as to the division of relationship property between Mr Ngae and Ms Koh.1 The Judge dismissed Mr Ngae’s parents’ claim of a trust, largely on the basis of a gifting certificate signed by Mr Ngae’s mother and given to the bank providing a loan to purchase the Property at that time.

[3] Mr Ngae and his parents appealed to this Court, though not in relation to the finding a de facto relationship existed. The basis of the appeal was again that the Property, in its entirety, was held on trust for Mr Ngae’s parents (being either an express, constructive or resulting trust).

[4] As a result of discussion with counsel at the hearing, the claim that the entirety of the Property was held on trust for Mr Ngae’s parents was abandoned (by way of memorandum from counsel for the appellants after the appeal hearing), with the trust claim confined to that portion of the Property reflecting funds advanced by Mr Ngae’s parents and contributing to the purchase price. In my substantive judgment, I upheld that trust claim (on a resulting trust basis).2 As result of this finding, I also made consequent amendments to the division of relationship property between Mr Ngae and Ms Koh.

1 Koh v Ngae [2018] NZFC 6072.
2 Ngae v Koh [2019] NZHC 2466.

[5] At the conclusion of my substantive judgment, I addressed the question of the costs of the appeal. I stated the…

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 Chi v Yan

Details

AGLC: Chi v Yan [2019] NZHC 3489
Case: [2019] NZHC 3489
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Chi v Yan was heard in the High Court of New Zealand, Auckland Registry. The matter arose from a de facto relationship between Tyrone Ngae Chi and Amanda Koh Shee Yan, which had ended, leading to disputes over their relationship property, particularly a residential property in Mt Wellington. Chi and his parents sought to argue that the property was held on trust for the parents, a claim dismissed by the Family Court. They appealed to the High Court, narrowing their claim to a trust in relation to funds advanced by the parents towards the purchase price of the property. The court found in favour of the parents on this point and amended the division of property between Chi and Yan accordingly.

In considering the costs of the appeal, the court noted that the appellants had made settlement offers to Yan following a previous judgment encouraging settlement. These offers were predicated on an estimate of the property's value of around $1 million. However, a more recent appraisal suggested the property could be worth significantly more, potentially over $1 million. Given this uncertainty, the court found that it was not unreasonable for Yan to reject the settlement offers, particularly as the appellants' trust claims were, in part, misconceived. The court concluded that the costs of the appeal should lie where they fell, reflecting the mixed success of the parties and the appellants' own acknowledgment that their initial appeal strategy was flawed.

Consequently, the court ordered that the costs of the appeal should lie where they fell. This decision recognised the uncertainty over the property's value at the time of the settlement offers and the appellants' unsuccessful arguments that formed a significant part of the appeal process. The outcome aligns with the principle that costs generally follow the event, with adjustments made only where necessary to reflect the conduct of the parties during the proceedings.

Orders