Loe v Hala - [2024] NZHC 3173

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-1595

[2024] NZHC 3173

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 and trustees of the ESTATE OF

CATHERINE LANG
Appellants

AND

NEWWEI HALA

Respondent

Hearing: 17 October 2024

Appearances:

J E McLennan for the Appellants

S Chandra and Y Tan for the Respondent

Judgment:

30 October 2024

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Wednesday, 30 October 2024 at 3.30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors: Holmden Horrocks, Auckland
Turner Hopkins Solicitors (Y Tan), Auckland

Counsel: S Chandra, Auckland

LOE v HALA [2024] NZHC 3173 [30 October 2024]

[1]Wesley and John Loe seek leave to adduce further evidence in an appeal.1

[2] The appeal relates to a decision of Judge T Sharkey in the Family Court on 17 May 2024 making an order under s 24(2) of the Property (Relationships) Act 1976 (the Act) extending the time for Newwei Hala to make a substantive application under the Act.2 Newwei’s substantive application under the Act is to set aside a separation agreement dated 23 July 2020 made under s 21A of the Act between himself and his ex-wife, Catherine Lang.

[3] Wesley and John are Newwei and Catherine’s children. Catherine passed away on 20 August 2023 and Wesley and John are the executors and trustees of her estate.

Newwei’s substantive application

[4] Newwei’s substantive application seeks to set aside the separation agreement on two grounds. First, the agreement is void as it does not comply with the requirements of s 21F of the Act because Newwei did not receive independent legal advice as to the effects and implications of the agreement. Second, giving effect to the agreement would cause serious injustice in terms of s 21J of the Act.

[5] Broadly, the separation agreement provides that Catherine retains all property in New Zealand, Newwei retains all property in Australia and in China, and an adjustment payment of $1 million is made by Catherine to Newwei. Newwei’s evidence is that when the agreement was signed, neither party owned any property in China and two properties in Australia were only purchased by him post-separation. Newwei says that the monetary value of what he received under the separation agreement was the value of the two Australian properties and the $1 million adjustment payment, a total of $2,148,000. In contrast, Catherine received the seven properties the parties owned in New Zealand, which had a value of more than
$10 million.

1 Pseudonyms have been used instead of the parties’ real names. I will for convenience, and meaning no disrespect, refer to parties by their (pseudonymous) given names.
2 [Hala] v [Loe] [2024] NZFC 6252.

Newwei’s application for an extension of time

[6] Under s 24(1)(a) of the Act, Newwei…

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 Loe v Hala

Details

AGLC: Loe v Hala [2024] NZHC 3173
Case: [2024] NZHC 3173
Decision Date: 30 October 2024

CaseChat Overview and Summary

The appellants, Wesley and John Loe, seek leave to adduce further evidence in their appeal against a decision of the Family Court extending the time for Newwei Hala to make a substantive application under the Property (Relationships) Act 1976. The substantive application seeks to set aside a separation agreement made between Newwei and his ex-wife, Catherine Lang, on the grounds that it is void and would cause serious injustice. The appellants seek to adduce four categories of evidence: a table of Chinese companies in which Newwei has an interest, Chinese medicine prescriptions, WeChat messages, and documents related to a life insurance policy taken out by Newwei and Catherine through the BNZ. The appellants argue that this evidence is relevant to the merits of Newwei's substantive application.

The central legal issue is whether the Court should allow the appellants to adduce further evidence on appeal. Under r 20.16(3) of the High Court Rules 2016, the Court may only grant leave if there are "special reasons" for hearing the evidence. However, the Court of Appeal in Hodgson v Hodgson held that where the evidence is not fresh, there is no practical difference between the interests of justice and special reasons. The appellants bear the onus of showing that the circumstances are exceptional and the grounds compelling for the evidence to be admitted.

Blanchard J held that none of the evidence was fresh as it could have been produced with reasonable diligence at the first instance hearing. The appellants had the evidence available to them since the end of the previous year and there was sufficient time to put the evidence before the Court. The appellants' reasons for not presenting the evidence at the first instance hearing were no longer valid well prior to the hearing before the Judge on 17 May 2024. Furthermore, the circumstances were not exceptional and the grounds for the evidence being permitted were not compelling. The evidence was largely irrelevant to the outcome of the appeal, which was to extend the time for filing Newwei's substantive application, not the merits of that application.

The application for leave to adduce further evidence was dismissed. Newwei is entitled to costs in relation to the application, categorised as a category 2 proceeding with allocation B for each step taken in relation to the application. Reasonable disbursements are also payable.

Orders