Liu v Yang - [2015] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000563 [2015] NZHC 2965

BETWEEN
YING LIU

Plaintiff

AND

KUN YANG Defendant

Hearing: 15 September 2015

Appearances:

L Kearns for the Plaintiff
R Reed for the Defendant

Judgment:

25 November 2015

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 25 November 2015 at 4.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Philip Lee Law, Auckland
Prestige Lawyers Limited, Auckland

L Kearns, Auckland

LIU v YANG [2015] NZHC 2965 [25 November 2015]

[1] This is an application for an order to dispose of a protest to jurisdiction in respect of a proceeding under the Property (Relationships) Act 1976 that was transferred to the High Court from the Family Court earlier this year.

[2] The application is opposed.

Background

[3] The plaintiff commenced the relationship property proceeding on

9 December 2014 in the District Court at North Shore. She seeks orders determining the respective shares of the parties in relationship property, including two properties situated in New Zealand, and seeks leave for that application to be heard out of time. The first is a property at 25 Ravenwood Drive, Forrest Hill, where the parties lived together for several years, and the second is a property at 9B Fontenoy Street, Mount Albert. Both properties were registered in the name of the respondent.

[4] In her claim the plaintiff describes herself as an international student, and as being of Forrest Hill, Auckland. The respondent is described as being an international student of unknown address in Australia. However, it is common ground that the respondent intends to live in China, the home of both parties before they came to New Zealand as students, though his present address is apparently somewhere in Australia.

[5] An order allowing substituted service of the proceeding on the respondent was made on 3 February 2015. The order transferring the proceeding to the High Court at Auckland was made by consent on 16 March 2015, at which time counsel for the respondent advised that he would be filing a formal protest to jurisdiction.

[6] On 25 March 2015 the respondent filed and served his protest to jurisdiction. The plaintiff’s application to set aside the protest was filed on 17 June 2015.

[7] While these proceedings have been ongoing, the respondent’s parents have filed a proceeding against the plaintiff1. In that proceeding they allege a beneficial interest in the two properties. The respondent has since been joined in that proceeding as second defendant, since he is the registered owner of both properties.

The protest to jurisdiction

[8] The protest to jurisdiction listed the following grounds as the basis for the objection to jurisdiction:

(a) The parties married on 31 December 2009 in China, and on

10 September 2013 they dissolved their marriage in China following the process applicable there. They entered into an agreement, recording the dissolution of their marriage and division of their relationship property.

(b) The plaintiff prepared the agreement.

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 Liu v Yang

Details

AGLC: Liu v Yang [2015] NZHC 2965
Case: [2015] NZHC 2965
Decision Date: 25 November 2015

CaseChat Overview and Summary

Liu v Yang [2015] NZHC 2965 involved a proceeding under the Property (Relationships) Act 1976, transferred to the High Court from the Family Court, where the plaintiff Ying Liu sought orders determining the respective shares of the parties in relationship property, including two properties in New Zealand. The defendant Kun Yang filed a protest to the jurisdiction of the New Zealand Court, arguing that the parties had already submitted themselves to the law of the People's Republic of China by reaching and registering a concluded divorce settlement. The Court was required to decide whether it had jurisdiction to hear the claims and if it should decline to exercise that jurisdiction because China was a more appropriate forum for the proceeding.

The Court determined that it had jurisdiction to deal with the proceeding, as the New Zealand Court has jurisdiction to determine issues relating to immovable property situated in New Zealand, irrespective of the domicile of the parties. The existence of an agreement would be a factor going to whether this Court should decline to make an order, rather than to whether it actually has jurisdiction. The Court also found that the respondent had not discharged the onus of proof that a stay should be granted on the grounds of forum non conveniens. The factors pointing towards New Zealand as the forum conveniens included the fact that there were two immovable pieces of property in New Zealand, the parties had resided in New Zealand for the vast majority of their relationship and marriage, and there was concurrent litigation as to the beneficial ownership of the land ongoing in the New Zealand Courts. The protest to jurisdiction was set aside, and the Court granted leave to hear the plaintiff's application out of time. The proceeding was consolidated with the trust claim by the respondent’s parents.

The final orders of the Court were: (1) the protest to jurisdiction was set aside; (2) the Court had jurisdiction to hear the application and was the forum conveniens; (3) leave was granted to hear the plaintiff's application out of time; (4) the proceeding and the proceeding in CIV-2014-404-2156 were consolidated; and (5) the defendant was to pay to the plaintiff costs as fixed by the Registrar.

Orders