Lung v Liu - [2022] NZHC 3074

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1720

[2022] NZHC 3074

BETWEEN
JU-TING LUNG

Plaintiff

AND

YU-CHEN LIU

Defendant

Hearing: 6 July 2022

Appearances:

K Sun for the Plaintiff/Applicant

L Kearns KC and L Wang for the Defendant/Respondent

Judgment:

23 November 2022

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 23 November 2022 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Capstone Law, Auckland LW Law, Takapuna

LJ Kearns KC, Auckland

LUNG v LIU [2022] NZHC 3074 [23 November 2022]

Introduction

[1] The applicant has filed a proceeding under the Property Law Act 2007 (PLA) seeking orders for the sale of a property in Studfall Street, Pakuranga Heights (Studfall Street Property). The Property was purchased eight months after the parties separated using a half share of the proceeds of the sale of the family home.

[2] The Property was put into the names of both the applicant and the respondent to allow a loan to be obtained from the ANZ Bank who would only agree to the loan if the applicant became a joint borrower. The terms of the agreement between the parties as to the basis upon which the Property is held are disputed.

[3] The respondent filed a notice of appearance under protest to jurisdiction on the grounds that this is a relationship property dispute in respect of which the High Court does not have jurisdiction.

[4] The applicant has applied to set aside the respondent’s protest on the following alternative grounds:

(a)The Property was purchased 8 months after the parties had separated (using funds from the respondent’s separate property). Therefore this is not a transaction under the jurisdiction of the PRA because the parties are no longer spouses.

(b)In the alternative, the parties have waived their rights under the PRA with respect to the Property (i.e the parties agree the Property is not relationship property). Therefore the Family Court does not have jurisdiction to determine its division.

(c)In the alternative, the PRA does not preclude the applicant from seeking orders in the High Court for the sale of the property under the Property Law Act 2007.

[5] At the hearing, a further alternative was added: that orders can, in any event, be made under the PLA with any amount held to be relationship property set aside so proceedings could be brought in the Family Court.

Issues

[6]The issues are therefore:

(a)Are the parties still spouses for the purposes of applying the Property (Relationships) Act 1976 (PRA) as a code?

(b)Have the parties waived their rights under the PRA in respect of the Studfall Street Property?

(c)Does the PRA preclude the applicant from seeking orders under s 339 of the PLA for the sale of the Property?

(d)If relationship property was used to purchase the Property, could a sale be ordered under the PLA with directions for the relationship property to…

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 Lung v Liu

Details

AGLC: Lung v Liu [2022] NZHC 3074
Case: [2022] NZHC 3074
Decision Date: 23 November 2022

CaseChat Overview and Summary

Lung v Liu was a proceeding in the High Court of New Zealand seeking orders for the sale of a property in Studfall Street, Pakuranga Heights. The respondent, Liu, filed a notice of appearance under protest to jurisdiction on the grounds that the High Court did not have jurisdiction over this relationship property dispute. The applicant, Lung, applied to set aside the protest on alternative grounds, including that the Property was purchased eight months after the parties separated and that the Property (Relationships) Act 1976 (PRA) does not preclude the applicant from seeking orders in the High Court for the sale of the property under the Property Law Act 2007. The issues before the court were whether the parties are still spouses for the purposes of applying the PRA as a code, whether the parties have waived their rights under the PRA in respect of the Studfall Street Property, whether the PRA precludes the applicant from seeking orders under s 339 of the PLA for the sale of the Property, and if relationship property was used to purchase the Property, could a sale be ordered under the PLA with directions for the relationship property to be set aside following the sale to allow relationship property proceedings to be brought in the Family Court. The court found that the parties are still spouses for the purposes of applying the PRA as a code, and that the PRA does not preclude the applicant from seeking orders under s 339 of the PLA for the sale of the Property. The court set aside the respondent's protest to jurisdiction and allowed the applicant's application for orders for the sale of the Studfall Street Property. The court encouraged the parties to try to reach agreement between themselves and, if that is not possible, to file proceedings in the Family Court to resolve all issues between them rather than potentially requiring two proceedings.

Orders