Ngae v Yan - [2019] NZHC 566

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001944

[2019] NZHC 566

BETWEEN
TYRONE CHI LUNG NGAE

First Appellant

KO HOE NGAE
Second Appellant

CHING YUN KONG
Third Appellant

AND

AMANDA KOH SHEE YAN

Respondent

Hearing: 15 March 2019

Appearances:

D Zhang for the Appellants

N Farrands for the Respondent

Judgment:

25 March 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 25 March 2019 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Amicus Law, Auckland Morrison Kent, Auckland

TYRONE CHI LUNG NGAE v AMANDA KOH SHEE YAN [2019] NZHC 566 [25 March 2019]

[1] The appellant is seeking to adduce further evidence on a relationship property appeal to be heard on Thursday, 2 May 2019.

[2] Before turning to the particular case, it is important to re-state the law in regard to adducing evidence on an appeal, particularly with regard to factually dense litigation such as this.

Test for adducing evidence on appeal

[3] Under r 20.16, a party to an appeal may adduce further evidence only with the leave of the court.1 Leave will only be granted if there are special reasons to admit the evidence. The new evidence must generally be fresh, and must be cogent and credible.2

[4] I should add that, although the test has long been stated in that way, given cogent means “convincing”, I do not see that a great deal is added by the word “credible” in this context.

[5] As with any evidence to be adduced, new evidence also has to be relevant and, certainly in the context of relationship property proceedings such as this, it would have to be material, not evidence of relatively minor significance.

[6] The appellant argues that evidence that does not count as being “fresh” can still be adduced if it is cogent and credible.

[7] As Mr Farrands for the respondent submits, that is not correct. There can be circumstances where evidence that is not fresh is admitted, but those circumstances will be exceptional, as well as meeting the two other criteria.

[8]This last point was addressed in Rae v International Insurance Brokers Limited

as follows:3

1      High Court Rules 2016, r 20.16.
2      Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192; affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].
3      Rae at 193.

While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling. In addition, it will need to pass the tests of credibility and cogency.

[9] Evidence that is not fresh is likely to be admitted in the present context, for example, where the Family…

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 Ngae v Yan

Details

AGLC: Ngae v Yan [2019] NZHC 566
Case: [2019] NZHC 566
Decision Date: 25 March 2019

CaseChat Overview and Summary

Tyrone Chi Lung Ngae and others are appealing against a decision made by the Family Court regarding the division of property following the end of a de facto relationship with Amanda Koh Shee Yan. The appeal hinges on the admissibility of new evidence that the appellants wish to introduce. The primary legal issue before the court was whether the appellants were entitled to adduce further evidence on the appeal. The court had to consider the criteria for adducing new evidence in an appeal, particularly in the context of relationship property proceedings. The court had to decide if the new evidence was fresh, cogent, and credible, and if there were special reasons for admitting it. Additionally, the court had to assess the relevance and materiality of the new evidence in light of the changed circumstances since the Family Court judgment. The High Court held that the appellants were not entitled to adduce the new evidence they sought to introduce. The evidence was not fresh, and there were no exceptional circumstances justifying its admission. The court found that the new evidence was largely irrelevant given the changed circumstances in the case, particularly the reduced value of the property in dispute and the reclassification of some of the respondent’s bank account as relationship property. The court emphasised the importance of avoiding substantial re-litigation of the case and the need to keep appeals concise and focused. The court granted permission for the respondent’s bank statements to be introduced, as these were provided by consent. The court urged the parties to settle the matter promptly, given the relatively modest amount of money at stake. The respondent was awarded category 2B scale costs on the application.

Orders