J v L

[2025] NZHC 1490

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3280

[2025] NZHC 1490

UNDER

the Property (Relationships) Act 1976

IN THE MATTER

of an application for discovery after the commencement of proceedings

BETWEEN

J

Appellant

AND

L

Respondent

Hearing:

21 May 2025

Counsel:

S L L Gallagher for appellant

K A Koo and S Lye for respondent

Judgment:

9 June 2025

JUDGMENT OF JOHNSTONE J

(appeal against discovery orders)

This judgment was delivered by me on 9 June 2025 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Righteous Law, Auckland Kootelle, Auckland

J v L [2025] NZHC 1490 [9 June 2025]

[1]    For around four years now, Ms L has been pursuing relationship property proceedings, in the Family Court at Manukau, against Mr J.  In late August 2024   (by amended application) Ms L sought, and in late November 2024 she obtained from a Family Court Associate, an order under r 141 of the Family Court Rules 2002    (the Rules) that Mr J and various New Zealand trading banks provide discovery of certain documents.1

[2]    Mr J appeals against the order for discovery. He accepts that the Family Court Associate had the power to make the order.2 But he says that the order is too broad, and offends against the principle that discovery in Family Court proceedings should not be onerous.

Background

[3]    Ms L and Mr J live in China. They have been married to each other three times. They married in 1996 and divorced in 2000. They married again in 2003 and divorced in 2017. And they married in 2019 and separated (finally) in early 2020, before divorcing in early 2024.

[4]    Ms L’s substantive proceeding seeks the division of what she contends is relationship property, consisting of:

(a)three residential properties in Auckland;

(b)funds in bank accounts in the parties’ names jointly and individually, and in the name of their daughter; and

(c)household furniture and motor vehicles.

1      [L] v [J] [2024] NZFC 15325.

2      Family Court Associates may exercise the powers conferred, under any enactment, on a Registrar of the Family Court (see Family Court Act 1980, sch 2, cl 4). A Family Court Registrar may exercise the jurisdiction of a Family Court Judge to hear and determine any with notice interlocutory application, which is not an application for a rehearing (see Family Court Rules 2002, r 221(1) and (1A), and s 16A of the Family Court Act).

[5]    In March 2023, Ms L obtained a Family Court order granting an interim distribution  of  funds  in  joint   accounts   at   the Westpac  bank.  Mr J appealed.

Justice Davison dismissed the appeal.3

[6]In dismissing Mr J’s appeal, Davison J found that:

(a)A so-called “Divorce Agreement”, entered between the parties at the time of their second divorce in 2017, did not preclude or restrict Ms L’s claim. The three Auckland properties were not within its scope, and Ms L’s evidence is to the effect that she contributed to the funds used to purchase, and improve or maintain, them.4

(b)And, in any event, the evidence Ms L presented indicated that despite the short duration of the parties’ third marriage, the relationship had a much longer and more extensive history, including periods during which they were married, and when not legally married nevertheless in a de facto relationship.5

[7]Ms L’s original application sought discovery of:

(a)details of Mr J’s bank accounts in New Zealand and China;

(b)statements for all of Mr J’s bank accounts in  the  period  from  January 2015 to February 2020;

(c)conveyancing files for the purchase of the Auckland properties; and

(d)the source of funds, with supporting bank statements and remittance details, for these three property purchases.

3      J v L [2023] NZHC 2434, [2023] NZFLR 249.

4 At [53].

5 At [52].

[8]    Her amended application sought the same discovery from Mr J, and also non-party discovery, from New Zealand trading banks (for the extended period of 2008 to 2020) and from the conveyancing lawyers who facilitated the property dealings.

Principles

[9]Relevantly, under r 141 of the Rules:

141     Order for discovery after proceedings commenced

(1)If a notice of defence or a notice of intention to appear has been filed, a party may apply to the court for an order for discovery of documents—

(a)that are, or have been, in the possession of another party to the proceedings; and

(b)that relate to a matter in question in the proceedings.

(2A) On receipt of an application made in accordance with subclauses (1) and (2), the court may order the party referred to in subclause (1)(a) to file an affidavit stating—

(a)whether certain documents or classes of documents are or have been in that party’s possession, custody, or power; and

(b)if the party had the documents or classes of documents but has now parted with the documents or classes of documents, when the party did so and what became of the documents or classes of documents.

[10]   In Dixon vs Kingsley, Kós J observed (in 2015) that the discovery regime established by r 141 is “seriously outdated and capable of working injustice”.6 This, because the relevant purpose of the Property (Relationships) Act 1976 (the Act) is to provide for a just division of relationship property, in accordance with the principle (amongst others) that questions about such property should be resolved as inexpensively, simply and speedily as is consistent with justice.7 Yet wide-ranging discovery of material, including that only marginal relevance, might, in the context of modern information technology and the possibility of interlocutory wrangling (by way of application and appeal), preclude or limit access to civil justice.8

6      Dixon v Kingsley [2015] NZHC 2044, [2015] NZFLR 1012.

7      Property (Relationships) Act 1976, s 1N(d).

8      Dixon v Kingsley, above n 6, at [12]–[16].

[11]   On that basis, Kós J stated a series of essential principles governing discovery in relationship property litigation, including that:9

(a)A robust approach should be taken.

(b)Such discovery must not be unduly onerous. And it must be reasonably necessary at the time sought.

(c)The scope of discovery should therefore be tailored to the needs of the Court to dispose, justly and efficiently, of relationship property issues under the Act.

[12]   The courts have regularly applied those principles. Plainly, the application of the principles, and r 141 itself, involves a highly discretionary exercise.

Family Court Associate’s decision

[13]   The Family Court Associate acknowledged the lengthy period for which Ms L sought bank statements.10 However, he referred to the preliminary findings made in respect of Ms L’s interim distribution application, that the parties’ relationship appeared to extend beyond the periods in which they were married. And he found that the information sought might “very well be relevant to the determination that” the Family Court will eventually make in the substantive proceeding on that issue.

[14]   The Family Court Associate referred to what I understand was the contention of Ms Gallagher (on behalf of Mr J), made in submissions on the issue of discovery, that the duration of the parties’ relationship should be determined as a preliminary issue. And he observed that accepting that contention would have resulted in the discovery application being adjourned, likely until mid-2025.

[15]    Overall, the Family Court Associate found the material of which Ms L sought discovery to have “clear” relevance. And that its discovery would be neither unfair nor onerous.

9 At [20].

10     Indeed, he mischaracterised the period as one of 19 years.

Approach on appeal

[16]   Mr J is entitled, under s 39 of the Act, to appeal. His appeal requires to be advanced in this Court,11 by way of rehearing.12 However, given the highly discretionary power to order discovery under r 141, to succeed Mr J requires to establish: an error of law or principle; a taking into account of an irrelevant consideration, a failure to take into account a relevant consideration; or that the Family Court Associate’s decision was plainly wrong.13

[17]   I note that Davison J, in the interim distribution appeal mentioned above, applied the same test.14

Mr J’s position

[18]   For Mr J, Ms Gallagher submits (as she did before the Family Court Associate) that the Family Court should determine the duration of the relationships as a preliminary question in the proceeding. Once that has occurred, it will be clear that property acquired only during their marriages is at issue. This will limit the scope of the discovery required.

[19]   Until then, Ms Gallagher submits that the discovery ordered is unduly onerous, and for that reason should not have been ordered.

Assessment

[20]   The Family Court has not directed determination of the relationship’s duration separately from the balance of the proceeding, which relates to the identification of property acquired during those relationships. That is unsurprising. Mr J has not formally applied for separate determination of the issue.

[21]   Further, as the Family Court Associate observed, the prospect of further delay in the proceeding is unattractive. It is unlikely to serve the efficacy of the proceeding

11     District Court Act 2016, s 125.

12     District Court Act, s 127 and High Court Rules, r 20.18.

13     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32], May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].

14     J v L, above, n 3, at [56].

for it to be dealt with on a separate, issue by issue basis, with timetabling of separate hearings and the evidence and submissions in advance. And in any event, there is likely to be a substantial degree of overlap in the evidence and arguments relating to the nature and length of the parties’ relationships, and their property dealings. If one party acquired property, which was used by the other or by them both, evidence to that effect will serve not only to identify the property, but will support Ms L’s claim that the relationship was in existence at that point. Overall, an application for separate determination would likely fail.

[22]   On this basis, Ms Gallagher’s request to delay the proceeding for separate determination of the issue of duration had to be rejected.

[23]   In any event, given the overlap in the likely arguments and evidence, discovery such as that ordered would nevertheless have been appropriate in advance of the determination of the issue of duration. Ms Gallagher’s request to delay the proceeding amounted to a red herring.

[24] My view is that the Family Court Associate was fully entitled to exercise the discretion to make the order that he did. The discovery order was one that the efficacy of the proceeding and the broader interests of justice demanded, and therefore not unduly onerous. Mr J has failed to persuade me that this Court would not have made the same order, let alone that the Family Court Associate’s decision involved an error of a type meeting the test set out at [16].

Result

[25]Mr J’s appeal is dismissed.

[26]Ms L appears entitled to costs. If the parties cannot agree on costs:

(a)Ms L is to file a memorandum no longer than five pages in length, outlining her position, by 5 pm on 20 June 2025;

(b)Mr J is to file a reply memorandum no longer than five pages in length, by 5 pm on 4 July 2025; and

(c)I will determine the issue thereafter on the papers.

Johnstone J