Han v Zhu - [2021] NZHC 3007

NOTE: IN RELATION TO PARAGRAPH [39] ONLY, PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT

REFERRING TO THE CONTENT OF [39] OF THIS JUDGMENT MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1082

[2021] NZHC 3007

UNDER the Contempt of Court Act 2019

BETWEEN

HONGZE HAN

Applicant

AND

LANYING ZHU

Respondent

Hearing: 1 November 2021

Appearances:

K Sun for the Applicant

K Puddle for the Respondent

Judgment:

8 November 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 8 November 2021 at 2 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Capstone Law Limited, Auckland
K3 Legal Limited, Auckland

HAN v ZHU [2021] NZHC 3007 [8 November 2021]

[1] The applicant, Hongze Han and the respondent, Lanying Zhu, were married. They separated in around 2013 and their marriage was dissolved in August 2015. On 28 February 2017, Judge S J Fleming in the Family Court at Auckland, after a formal proof hearing in the absence of Ms Zhu, made orders that a property in Gillies Avenue, Epsom (the property) be sold by way of public action and the net sale proceeds equally divided between the parties.1

[2]Ms Zhu is the sole registered proprietor of the property which remains unsold.

[3]Mr Han seeks orders under s 16 of the Contempt of Court Act 2019 (the Act):

(a)that a warrant be issued committing Ms Zhu to a term of imprisonment as the Court considers appropriate to penalise Ms Zhu for her refusal to comply with the Family Court order;

(b)that a fine be imposed on Ms Zhu, in part or in whole, payable to Mr Han;

(c)an award of costs in favour of Mr Han for, and incidental to, the application on a solicitor-client basis; and

(d)any other relief that the Court considers just.

[4]Ms Zhu opposes Mr Han’s application.

A brief background

[5] Mr Han and Ms Zhu married in 1986, and have one daughter named Dan Han Hoolihan (also known as Alice). Their marriage was dissolved in August 2015. During the course of their marriage, Ms Zhu purchased the property and she is the sole registered proprietor. In April 2015, Mr Han issued proceedings seeking orders for the division of relationship property (including the property). The Family Court

1 Han v Zhu FC Auckland FAM-2015-004-000407, 28 February 2017.

proceeding and Judge Fleming’s order for sale of the property are described in more detail below.

[6] In her affidavit filed in support of her notice of opposition to the application, Ms Zhu says that over the course of 2012, wanting to provide for her daughter who was about to be married, she set up the Dan Han Family Trust (the Trust). Ms Zhu is the sole trustee and Alice, and her children and grandchildren, are the beneficiaries. On 14…

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 Han v Zhu

Details

AGLC: Han v Zhu [2021] NZHC 3007
Case: [2021] NZHC 3007
Decision Date: 8 November 2021

CaseChat Overview and Summary

Hongze Han applied to the High Court for orders under section 16 of the Contempt of Court Act 2019 against Lanying Zhu, his former wife, for her refusal to comply with a Family Court order that the property at Gillies Avenue, Epsom be sold and the net sale proceeds be divided equally between the parties. The property remains unsold and Zhu is the sole registered proprietor. Han claims Zhu has refused to sell the property because she disagrees with the Family Court order. Zhu contends that the order is unclear and ambiguous as it does not specify a date by which the sale must occur and that the property was gifted to her in her capacity as trustee of the Dan Han Family Trust, of which their daughter is the beneficiary. Han argues that other methods of enforcing the sale order have been tried unsuccessfully or are inappropriate. Zhu contends that Han could apply back to the Family Court for further directions or orders to implement the sale order. The Court found that Han had not considered or tried alternative methods of enforcing the sale order and accordingly, his application was refused. The Court found it unnecessary to consider the further arguments by the parties made in relation to the elements required to be proven under section 16(3)(b) of the Act. Costs were reserved.

Orders