Li v Wu - [2022] NZHC 333

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-612

[2022] NZHC 333

BETWEEN
ZHAOHUA LI

Plaintiff

AND

YI HENG (HENRY) WU

First Defendant

AND

ZHONGXIU FAN

Second Defendant

CIV-2018-409-238

BETWEEN

ZHONGXIU FAN

Plaintiff

AND

YI HENG (HENRY) WU

First Defendant

AND

ZHAOHUA LI

Second Defendant

Hearing (by telephone): 22 February 2022

Appearances:

A M Corry for Z H Li (Plaintiff/Second Defendant/Respondent) Z X Fan (Second Defendant/Plaintiff/Applicant) in person, with Y H Wu as Mackenzie friend

D Fan — Interpreter (Chinese/English)

Judgment:

1 March 2022

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 1 March 2022 at 4.30 pm pursuant to Rule 11.5
of the High Court Rules

Registrar/Deputy Registrar Date:

LI v WU [2022] NZHC 333 [1 March 2022]

[1] This judgment is on an application of Zhongxiu Fan for a stay of enforcement in these proceedings. In particular, Ms Fan seeks a stay of an order dated 24 September 2021 ordering that a property at 15 Blarney Place, Christchurch (the property) formerly the matrimonial home of Ms Fan’s son, Yi Heng Wu, and Ms Zhaohua Li be sold by auction (now scheduled for 3 March 2022).

Background

[2] Before I address Ms Fan’s current stay application, some background is necessary. I take it first from the judgment of the Supreme Court dated 21 June 2021 relating to these parties.1 By that judgment, the Court dismissed applications for leave to appeal brought by both Mr Wu and Ms Fan relating to a Court of Appeal judgment. The Court of Appeal had dismissed their appeals from earlier decisions of this Court. The Supreme Court recorded:

[2] After almost four years of marriage, Mr Wu and Ms Li separated in May 2013.2 They have one child who is in the primary care of Ms Li. In June 2014, Ms Li brought a claim for division of relationship property in the Family Court. Ms Fan was subsequently joined as a second respondent to those proceedings.3 Then, in April 2018, Ms Fan filed proceedings in the High Court. Her claim was that the property and assets the subject of Ms Li’s claim, including the family home, were the subject of a constructive, resulting, implied and/or express trust in her favour. Ms Li’s proceedings in the Family Court were ultimately transferred to the High Court and consolidated with those filed by Ms Fan.

[3] The consolidated proceedings went to a nine-day hearing in the High Court in mid-2019. At the hearing, Mr Wu and Ms Fan relied on a written agreement they said showed that the family home and other assets were not relationship property as the property was owned on trust solely for Ms Fan.

[4] In a judgment delivered on 27 September 2019, Gendall J largely upheld Ms Li’s claim (substantive High Court judgment). Relevantly, the Judge found that the family home (registered in Mr Wu’s name) was relationship property in which Ms Li was entitled to a half share at…

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: [2022] NZHC 333
Decision Date: 1 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Zhongxiu Fan applied for a stay of enforcement of a prior order requiring the sale of property at 15 Blarney Place, Christchurch. The property was formerly the matrimonial home of Fan's son, Yi Heng Wu, and Zhaohua Li. Fan's application was dismissed. Fan and Wu had previously appealed against the substantive judgment of the High Court and a facilitation order that permitted an expert to assess the property for weathertightness issues. Those appeals were dismissed by the Court of Appeal and the Supreme Court. The substantive judgment had determined that the property was relationship property held on trust for Li and Wu. It also found that some of the funds used to purchase the property were loans from Fan to Wu, constituting relationship debt owed to Fan. The enforcement judgment ordered that Wu and/or Fan pay the amount outstanding owed to Li into the High Court to be held until the Court of Appeal dealt with Fan's application for leave to appeal the substantive High Court judgment out of time. Fan's current stay application was dismissed on the basis that it was an abuse of process. Fan had not made any payment of costs ordered against her in previous proceedings. The Court ordered Fan to pay Li's costs of the application on an indemnity basis.

Orders