Feng v Ye - [2014] NZHC 2377

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003988 [2014] NZHC 2377

BETWEEN
BIN FENG

Plaintiff

AND

YINGZHEN YE Defendant

Hearing: 11 September 2014

Appearances:

Royal Reed for the Plaintiff
Ming Pang for the Defendant

Judgment:

30 September 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by on 30 September 2014 at 3:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

FENG v YE [2014] NZHC 2377 [30 September 2014]

Introduction

[1] Bin Feng and Yingzhen Ye are Chinese nationals. Their relationship began in Auckland in July 2006. They married three years later. There is one child of their union, born in 2010.

[2] In February 2011 the couple separated and have been living apart ever since. Ms Ye has moved back to China where she now lives with the couple’s child. While Ms Ye returns to New Zealand from time to time, Mr Feng lives in New Zealand.

[3] In the course of their marriage the couple brought two properties in New Zealand; a residential unit in Eden Terrace, Auckland and a section of vacant land in Rotorua. The properties are now registered in their joint names.

The Chinese proceedings

[4] Following their separation, Mr Feng commenced proceedings in China to settle the various matrimonial matters between the parties. These proceedings were filed in Futian People’s District Court of Shenzhen City, Guangdong Province. The proceedings took the form of a mediation which was presided over by a Judge. A certified copy of the transcript, entitled, “Written Records of Trial” was produced as well as another document referred to as the “Paper of Civil Mediation”. It is signed by the Judge, dated the same date as the transcript, i.e. 16 January 2013, and records what the parties had agreed to in the course of the mediation.

[5] At the mediation the parties agreed to a variety of issues to resolve their matrimonial differences. Amongst them was the division of property. The two New Zealand properties were to be transferred to Mr Feng in exchange for the payment of
150,000 yuan. However, there is a disagreement as to the sequence in which this was to be undertaken. Mr Feng says the agreement was for him to pay the funds into the Court and Ms Ye would effect the transfer after the funds were received in Court. Ms Ye says the funds were to be paid directly to her and she would then effect the transfer into Mr Feng’s name. Thus the focus of dispute is not on the amount of the monies to be transferred or what, once transferred, was to happen. It is simply a dispute over the order or sequence in which these steps were to be undertaken and

for this reason the correct interpretation of the two documents referred to above, the

Written Records of Trial and the Paper of Civil Mediation are said to be central.

[6] The Paper of Civil Mediation records seven issues which were resolved during…

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: [2014] NZHC 2377
Decision Date: 30 September 2014

CaseChat Overview and Summary

In Feng v Ye, Bin Feng and Yingzhen Ye, who had been married and separated, were in dispute over the terms of a property settlement reached in China. The Court was required to determine whether the New Zealand High Court should enforce the settlement reached in China, and if so, under what terms. The central issue was the interpretation of two documents: the Written Records of Trial and the Paper of Civil Mediation. The former required Mr. Feng to pay 150,000 Yuan to the Court, which would then transfer the properties to him, while the latter required Mr. Feng to pay the sum directly to Ms. Ye. Mr. Feng had already paid the money into the Court, but Ms. Ye had not transferred the properties to him.

The Court found that the Paper of Civil Mediation was the determinative document, as it was signed by the Judge and the parties and was the equivalent of a Court order. The Court held that the parties' dispute over the sequence of the payment and transfer was a matter of form rather than substance, and that the essential agreement was for Mr. Feng to pay Ms. Ye 150,000 Yuan and for her to transfer the properties to him within 10 days. The Court also held that the orders for substituted service were properly made and complied with, and that service was effective as Ms. Ye had been using the email addresses provided by Mr. Feng. The Court dismissed Ms. Ye's application to set aside the judgment of Gilbert J of 9 April 2014, and granted Mr. Feng's application for orders that the properties be transferred to him. The Court also held that the parties could utilise the services of their respective solicitors to ensure that Ms. Ye, in consideration for effecting the transfers, would receive the equivalent of 150,000 Yuan from Mr. Feng, who would also discharge the debt owed to the Agricultural Bank of China, Shenzhen Longhua Branch. Costs on these proceedings were awarded to Mr. Feng on a 2B basis with disbursements as fixed by the Registrar.

Orders