Loe v Hala
[2025] NZHC 1439
•4 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-001595
[2025] NZHC 1439
UNDER the Property (Relationships) Act 1976 IN THE MATTER
of an appeal against a decision of the Family Court at Manukau
BETWEEN
WESLEY LOE and JOHN LOE as executors of the ESTATE OF CATHERINE LANG
Appellant
AND
NEWWEI HALA
Respondent
Hearing: 13 May 2025 Counsel:
J E McLennan for Appellant
S Chandra/Y Tan for Respondent
Judgment:
4 June 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 4 June 2025 at 2.30 pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Holmden Horrocks, Auckland Turner Hopkins, Auckland
S Chandra, Auckland
LOE v HALA [2025] NZHC 1439 [4 June 2025]
Introduction
[1] On 17 May 2024, Judge T M Sharkey issued a decision in the Family Court at Manukau granting an extension of time for Mr Newwei Hala to bring an application under s 24 of the Property (Relationships) Act 1976 (PRA) to set aside a separation agreement, dated 23 July 2020, between himself and his ex-wife Catherine Lang.1
[2] Ms Lang passed away on 20 August 2023. The appellants are her two sons, Wesley Loe and John Loe, who are the executors and trustees of their mother’s estate. They appeal the decision of Judge Sharkey permitting their father to apply to set aside the separation agreement.
Background
[3] Mr Newwei Hala and Ms Catherine Lang were married on 17 September 1980. The relationship ceased in everything but name in 2009. Mr Hala subsequently moved to Australia with his new partner. On 23 July 2020, Mr Hala and Ms Lang signed a separation agreement under s 21 of the PRA. On 10 August 2020, an order was made dissolving the parties’ marriage. The order was sealed and effective on 11 September 2020.
[4] Under the terms of the separation agreement Ms Lang retained all property in New Zealand; Mr Hala retained all property in Australia and China; and an adjustment payment of $1 million was to be made by Ms Lang to Mr Hala in agreed instalments. Mr Hala’s position is that, at the time of the agreement being signed, neither party owned any property in China and the two properties in Australia were purchased by Mr Hala post-separation. He says that the monetary value of what he received under the agreement was $2,148,000 while Ms Lang received the seven properties the parties owned in New Zealand with a value of more than $10 million.
[5] Mr Hala filed an application in April 2023 seeking leave to apply to set aside the separation agreement out of time.
1 Hala v Loe [2024] NZFC 6252.
[6] The substantive application to set aside the separation agreement is brought on two grounds. First, that the agreement is void as it does not comply with the requirements of s 21F of the PRA because Mr Hala did not receive independent legal advice as to the effects and implications of the agreement. Secondly, because giving effect to the agreement would cause serious injustice in terms of s 21J of the PRA.
[7] On 20 August 2023, Ms Lang died. On 1 February 2024, the appellants, in their capacity as executors and trustees of Ms Lang’s estate, were added as parties to the proceedings.
[8] The application for leave to file out of time was then heard on 17 May 2024 and granted in an oral decision delivered the same day.
The District Court decision
[9] The Judge addressed two preliminary issues, being delay/case management and jurisdiction.
[10] In respect of delay, although it had been 12 or 13 months since Mr Hala brought his substantive applications, the Judge found that was not because the case had been managed incorrectly by the Court. Instead, the Judge found the delay was primarily due to the particular circumstances of the case, including the fact that Ms Lang died after the proceedings commenced.2
[11] The Judge said there was no issue with jurisdiction citing ss 24(4) and 10D(1) of the PRA, which provide for the situation where a party to a proceeding dies before the proceeding is determined and permits the proceeding to continue.3
[12] The Judge then turned to the issue for determination; namely, whether Mr Hala’s application to set aside the separation agreement could be brought outside the 12-month time limit provided for in s 24 of the PRA.
2 At [15].
3 At [17].
[13] The Judge set out the factual background, including the following agreed facts:4
(a)the order dissolving marriage between Mr Hala and Ms Lang is dated 10 August 2020 and effective at law on 11 September 2020;
(b)the legislative timeframe for bringing proceedings expired on 11 September 2021;
(c)Mr Hala commenced proceedings in April 2023;
(d)19 months is the delay in question; and
(e)Mr Hala is outside the time for filing, unless leave is granted extending the time for him to make an application pursuant to s 24 of the PRA.
[14] The Judge said the issue of leave is a discrete and narrow one. It is widely accepted there are four factors guiding a determination as to whether to exercise the discretion under s 24(2):5
(a)the length of time between the expiry of the PRA’s time limit and the bringing of the application;
(b)the adequacy of the explanation offered for the delay;
(c)the substantive merits of the claim; and
(d)any prejudice upon the respondent.
[15] The Judge noted these four factors are not a comprehensive code, saying that weight is placed against each factor dependent on the facts of each individual case.6
4 At [20].
5 At [25], citing Beuker v Beuker (1977) 1 MPC at 21.
6 At [26].
[16] The Judge considered that, in this case, the 19-month delay and the adequacy of the delay’s explanation were factors that overlapped and should be considered together.7
[17] Judge Sharkey was satisfied that Mr Hala instructed lawyers in Australia in or about May 2022. Her Honour did not consider the delay between the instruction of those lawyers and the filing of proceedings in April 2023 was unreasonable or amounted to a material delay. The Judge referred to two factors. First, that Mr Hala is in Australia and his Australian lawyers held initial meetings to understand the scope of instructions, documents were obtained to provide an opinion as to the merits of his claim, previous files were retrieved and there were attempts at negotiations and/or requests for information with Ms Lang. Secondly, the Judge said “the English language is clearly Mr Newwei Hala’s second language” and accepted that an interpreter would be required for meetings between Mr Hala and his lawyers, and translations of documents necessary.8
[18] The Judge then considered the period before Mr Hala instructed lawyers in Australia—September 2021 to May 2022. The Judge accepted that Mr Hala had raised an issue with Ms Lang about the separation agreement in late 2021 and said that the reason Mr Hala did so, and in particular whether it was because Mr Hala found out Ms Lang was terminally ill, was an issue for another day. The Judge did not consider 19 months to be a lengthy delay given the circumstances of the case and found the explanation for the delay adequate.9
[19] The Judge then turned to the merits of the substantive claim and referred to case law in the Family Court, where it has been held that it would unduly limit the discretion of the Court to approach such applications on the basis that the merit of the substantive claim is the most important factor. Judge Sharkey agreed and did not consider the merits of Mr Lang’s substantive claim to be the most important factor in determining whether to grant leave. Prima facie, the merits of Mr Lang’s application are sufficient to justify an extension of time being granted on the basis that there is an
7 At [27].
8 At [29]–[30].
9 At [21]–[34].
answerable case. The Judge was clear that the grant of leave said little about the substantive issue between the parties. There are clearly disputed facts relevant to the July 2020 agreement. Whether the agreement should be declared void or set aside are issues for another day.10
[20] The Judge then considered prejudice to the respondent because Ms Lang has passed away and the Court will not have her participation at any future hearing. Ms Lang had filed a notice of defence and affidavit in support and that material would be available for the Court. The Judge found that any prejudice against the respondent was outweighed by the fact that there is a prima facie case. The Judge said Mr Hala and Ms Lang own property together (irrespective of whether that was in their capacity as trustees or not). The family situation is clearly acrimonious and will require the Court’s involvement in some way.11
[21] The Judge said that, standing back and considering the matter as a whole, the extension of time should be granted.12
The appeal
[22] Broadly the appellants’ case is that Judge Sharkey placed undue weight on various elements of the respondent’s evidence and placed insufficient weight on the various elements of the appellants’ evidence and case in opposing leave being granted.
[23] The appellants say that a particularly noteworthy aspect is that Ms Lang passed away following the filing of the proceedings in the Family Court. Counsel was unable to find any authorities where the respondent passed away before the filing of proceedings. The appellant’s position is that substantial prejudice arises from the fact that Ms Lang will not be available at any hearing of the substantive application.
[24] The appellants also say the length of time since the agreement was made is extensive—nearing five years—and say that the agreement was fair and reasonable in light of the circumstances at the time it was made. Both parties were provided with
10 At [35]–[37], citing Saunders v Wilkinson [2013] NZFC 7970 at [49].
11 At [38]–[40].
12 At [41].
independent legal advice, and the circumstances in which the agreement was reached and signed by the parties were not unreasonable or unfair. It is said the respondent had ample opportunity to bring proceedings regarding the agreement after the dissolution of the marriage and chose not to do so until it became apparent that Ms Lang was terminally ill. Had he brought proceedings within time, the matter could have been concluded before Ms Lang’s death and with her involvement. The delay has changed the position to the prejudice of the appellants. Ms Lang is unable to give any further evidence in regard to the respondent’s claim. Ms Lang is unable to deal with other matters that a litigant would typically deal with when conducting a defence to proceedings brought against them.
[25] The appellants submit the relationship history of the parties should be a consideration under s 21J(4)(e). The appellants say the parties’ separation was as a result of the respondent having an affair with his current partner. As a result, Mr Hala and Ms Lang lived separately since 2009 and the agreement was one way by which they remained amicable. They had effectively been separated for 11 years before they agreed to the financial settlement in July 2020.
[26] The appellants say the respondent has put forward insufficient or inadequate grounds for serious injustice such that the application to set aside the agreement could be granted.
[27] The appellants submit that there is a significant issue with the respondent’s contention that there was an unjust division of property. That is because the majority of the New Zealand property is trust property and any claim in respect of the trust property is outside the jurisdiction of the Family Court under the PRA. It is said that the inability by the respondent to claim under the PRA in respect of the trust properties counts against the merits of the claim and against leave to extend time to bring the claim. The appellants say the Judge placed insufficient weight on the fact that the subject properties are owned by trusts.
[28] The appellants say the Judge gave inadequate consideration to the appellants’ evidence as to the adequacy of the respondent’s explanation for the delay in bringing the application under the PRA. The appellants say that the explanation offered by the
respondent for the delay was inadequate. The appellants take issue with the finding by the Judge that the respondent had difficulties with the English language and say that the Judge made assumptions about the respondent’s level of English. The appellants say the Judge also made assumptions about the steps that would have been taken by the respondent’s legal advisors prior to the filing of the leave application. The appellants also take issue with the Judge’s finding that the merits of the case were sufficient because there is “an answerable case”.
Jurisdiction
[29] The appellants brought the appeal under s 39 of the PRA and s 124 of the District Courts Act 2016. The respondent does not dispute that there is jurisdiction to bring the appeal. However, the respondent submits it is doubtful that the jurisdiction exists under s 39 of the PRA because of the relatively recent decision in Vincent v Vallis, where Ellis J considered that s 39 only applies to the “making of orders” and that a decision to grant an extension of time under s 24 of the PRA is not an order as defined in the Act.13 The word “order” is used explicitly throughout the PRA to refer only to orders that have a substantive effect on the relationship property division.14 Section 24 of the PRA does not describe an extension of time as an order and the granting of an extension of time has no substantive effect on the division of relationship property.
[30] In Vincent v Vallis, it was held that granting an extension of time under s 24 of the PRA is not a relevant order for the purposes of appeal under s 39 of the PRA which provides a right of appeal against a decision to “make or refuse to make an order”.15
[31] The respondent acknowledges that the notice of appeal also relies on s 124 of the District Court Act which provides for an appeal against a decision made by the District Court, unless there is another enactment that expressly confers a right of appeal or expressly provides there is no right of appeal.
13 Vincent v Vallis [2023] NZHC 2758, [2023] NZFLR 428.
14 See Property (Relationships) Act 1976, s 25.
15 Vincent v Vallis, above n 13, at [35].
[32] The respondent accepts that if there is no jurisdiction under s 39 of the PRA, s 124 does provide jurisdiction to hear the appeal.
[33] It is not necessary for me to add my voice to the case law in respect of this issue. I would, however, follow the approach taken in Vincent v Vallis and I approach this appeal on the basis that jurisdiction to bring the appeal is found in s 124 of the District Court Act, rather than s 39 of the PRA.
The approach on appeal
[34] The decision to grant an extension of time under s 24 of the PRA is a discretionary one. That means the appeal does not proceed by way of rehearing but as set out in May v May. In that case it was said: 16
… in considering an appeal of this kind an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.
It is a feature of cases of this kind that in determining where the interests of just lay a number of counterbalancing facts must be considered. And the balancing process is not an exact one. Two Judges may arrive at different conclusions on the same points without it being said that either one is wrong…
[35]The role of this Court is not to reach an original conclusion on the application.17
[36] The leading case in respect of applications for extension of time is Almond v Read, where the Supreme Court said the ultimate touchstone is the interests of justice, with the following factors likely to require consideration: 18
(a)length of the delay;
(b)reasons for the delay;
(c)conduct of the parties;
16 May v May (1982) 1 NZFLR 165 (CA) at 170.
17 Pollock v Washer [2017] NZHC 2386 at [46].
18 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
(d)prejudice or hardship; and
(e)the significant of the issues raised by the appeal.
[37] The Supreme Court said, whilst the merits of the substantive matter are relevant, in the context of an application to extend time, the assessment must necessarily be relatively superficial. A view on the merits should only influence the outcome where the merits are obviously very strong or very weak. The power to grant or refuse an extension of time must not be used as a mechanism to dismiss apparently weak applications summarily.19
[38] As was said in Vincent v Vallis, any assessment of the merits at this stage can only be rudimentary and absent some obvious and fundamental difficulty with the merits, and will not militate against an extension of time.20
Discussion
[39] The delay of 19 months is not extreme. Counsel for the appellants acknowledged in oral submissions that, were Ms Lang still alive, it would be difficult to argue against an extension based only on delay. The death of one party to a proceeding after the proceeding is commenced is also explicitly provided for in the PRA. The PRA does not anticipate that proceedings are brought to an end by the death of one of the parties. In this case there is available affidavit evidence from Ms Lang, and the court hearing the substantive application will be alive to the potential for prejudice caused by her absence.
[40] The explanation for the delay given by Mr Hala is treated with scepticism by the appellants. That is understandable because the timing coincided with their mother being diagnosed with a terminal illness. It is understandable that the timing appears cynical to them. However, there is another explanation—Mr Hala took further legal advice in an attempt to enforce payment of the agreed $1 million payment under the settlement agreement and in the course of taking that advice realised that he had grounds to bring the current proceeding.
19 At [39].
20 Vincent v Vallis, above n 13, at [48].
[41] Further, although the appellant takes issue with the Judge relying on Mr Hala’s potential difficulties with the English language, there is no doubt that English is Mr Hala’s second language and documents did have to be translated. While Mr Hala may speak and use English in his day-to-day life, it was not unreasonable for the Judge to acknowledge that language and cultural difficulties likely remain when dealing with legal issues.
[42] I do not agree with the appellants’ position that Mr Hala has an onus to persuade the Court that an extension of time should be granted. That is not the test in the PRA. The fundamental consideration is that justice be done between the parties and a Judge must be satisfied that it is in the interests of justice to grant an extension. That does not impose any onus on either party.
[43] Much of the appellants’ argument related to the merits of the substantive application including the fact there is significant dispute about what property could be classified as relationship property. However, the Family Court Judge was alive to these issues and, although the reference to trust property in the decision is brief, it is clear that the issue had been raised with the Judge and considered by her as a factor that could affect the merits of the substantive application.
[44] The appellants submit that the relationship property should not be divided in accordance with the PRA because the parties agreed to contract out of the PRA. I consider that the fact that the parties signed a separation agreement is irrelevant to the application for an extension of time. Whether that separation agreement should stand or not is the very issue with which the substantive application is concerned. If the existence of such agreement precludes any extension of time, then there would be no need for the discretion in s 24(2) of the PRA.
[45] I do not read the Judge’s decision as making any assessment that the merits of the respondent’s case are strong, merely that the respondent’s claim has sufficient merit to justify an extension of time being granted. I think that is the correct approach. In the context of an application for leave it is only possible to make a rudimentary assessment of the merits. While the Court may get some sense of where the merits
likely lie, that is no more than an initial impression uninformed by evidence able to be tested in cross-examination.
[46] The way in which the relationship broke down, including the fact that Mr Hala had an affair, is of no relevance to the decision I must make. That fact may have some relevance in the substantive application because Mr Hala may have perceived a benefit to him from the separation agreement related to maintaining an amicable relationship with his ex-wife despite the fact of the affair. But I agree with the Family Court Judge that that is a matter for another day.
[47] I have considered the appellant’s point that the properties which are the subject of the claim are primarily trust properties. As the respondent submits, there is jurisdiction to make a claim against trust owned assets in ss 44 and 44C of the PRA. There is also jurisdiction under s 2 of the PRA for rights and interests in a trust to be classified as property.21 None of these issues can be tested while the separation agreement remains in place, and it would be inappropriate for this Court to make any determination about that in the context of an application for leave to set aside a separation agreement.
[48] It is only open to this Court to overturn this Family Court decision in limited circumstances. I do not think that the Family Court Judge was plainly wrong on any aspect of the decision. I consider that the findings made by the Family Court Judge were entirely open to her to make. Even if I did disagree with any those findings, I do not think that the result is plainly wrong to the extent that it should be set aside.
[49] I agree that the Family Court Judge correctly identified the factors to be considered in determining whether or not an extension of time should be granted, and each factor was adequately considered in the Family Court judgment.
Result
[50]The appeal is dismissed.
21 Clayton v Clayton (Claymark Trust) [2016] NZSC 30, [2016] 1 NZLR 590.
Costs
[51]The parties are directed to attempt to agree costs.
[52]If the parties are unable to agree on costs, I make the following directions:
(a)any application for costs is to be made by memorandum to be filed and served within 20 working days of the date of this judgment;
(b)any reply is to be filed and served by memorandum within a further
10 working days; and
(c)memoranda as to costs are not to exceed five pages.
[53] I will deal with the issue of costs on the papers unless the parties indicate that hearing time is required.
Wilkinson-Smith J
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