Song v Jiang - [2018] NZHC 2321

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1319

[2018] NZHC 2321

BETWEEN
YANA SONG

Applicant

AND

HONGMING JIANG

First Respondent

ALLIANCE INVESTMENT HOLDINGS LIMITED
Second Respondent

ASB BANK LIMITED
Third Respondent (Non-Party)

ANZ BANK NEW ZEALAND LIMITED
Fourth Respondent (Non-party)

Contd …/2

Hearing: 9 August 2018

Appearances:

D Zhang for Applicant

D R Bigio QC and L Clews for Respondents

Judgment:

5 September 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 5 September 2018 at 10am
pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
David Bigio QC, Auckland Amicus Law, Auckland
Lee Salmon Long, Auckland

SONG v JIANG [2018] NZHC 2321 [5 September 2018]

WESTPAC NEW ZEALAND LTD
Fifth Respondent (Non-party)

JOANNA MAREE PIDGEON
Sixth Respondent (Non-party)

SIYUAN QIU
Seventh Respondent (Non-party)

Summary

[1] Ms Yana Song and Mr Hongming Jiang were married for about two years. They are now separated and in dispute over relationship property and sale of an Auckland residential property by Mr Jiang for less than the price for which they bought it. Ms Song was granted a temporary without-notice freezing order over all of the property of Mr Jiang and an associated company, Alliance Investment Holdings Ltd (Alliance), as well as ancillary disclosure orders. She applies to renew the orders. Mr Jiang applies to discharge them. I extend the freezing orders against Mr Jiang’s property because I consider Ms Song has a good arguable case and there is a real risk of dissipation of assets. I discharge the freezing order over Alliance’s property and the disclosure orders.

What happened?

[2] Ms Song and Mr Jiang met and married in China in January 2016. Mr Jiang was a permanent resident of New Zealand. They moved to New Zealand and had a child. Mr Jiang was a vice president of an investment bank in China so travelled back and forth. Ms Song was also employed in the banking sector. In December 2016, they bought a residential property in Epsom, Auckland for $3.67 million. Mr Jiang says the property was registered in his name because Ms Song did not have New Zealand permanent residence or the ability to obtain a mortgage. He paid for it with funds of
$1.22 million as well as mortgage finance. Ms Song says the $1.22 million came from her. Mr Jiang says he provided the funds.

[3] They were going to develop the property. They did not and they never lived there. Their second child was born in August 2017. In early 2018, Ms Song and Mr Jiang separated. They agreed to sell the property but it was passed in at auction in April 2018. In May 2018 Mr Jiang received an offer of $3.03 million which he accepted. Ms Song offers screenshots of dated WeChat messages from Mr Jiang which appear to acknowledge her contribution of $1.2 million and others that appear to tell her there was no buyer, after…

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 Song v Jiang

Details

AGLC: Song v Jiang [2018] NZHC 2321
Case: [2018] NZHC 2321
Decision Date: 5 September 2018

CaseChat Overview and Summary

Yana Song, the applicant, and Hongming Jiang, the first respondent, were married for about two years and are now in dispute over relationship property and the sale of an Auckland residential property by Mr Jiang. Ms Song was granted a temporary without-notice freezing order over all of Mr Jiang’s property and an associated company, Alliance Investment Holdings Ltd (Alliance), as well as ancillary disclosure orders. She applies to renew the orders, and Mr Jiang applies to discharge them. The court must decide whether the freezing orders should be extended or discharged and whether the ancillary disclosure orders should continue. The legal issues include whether Ms Song has a good arguable case and whether there is a real risk of dissipation of assets. The court found that Ms Song has a good arguable case and there is a real risk of dissipation of Mr Jiang’s assets unless the freezing order is extended. However, the court found no sufficient reason to extend the freezing order over Alliance’s assets. The disclosure orders were also discharged as the Family Court’s PRA jurisdiction disclosure regime will apply to Ms Song’s substantive claim.

The court extended the freezing orders against Mr Jiang’s property, including the net proceeds of sale of the property held in Pidgeon Law’s trust account, while varying the orders to allow Mr Jiang to pay legal expenses relating to the freezing order and the substantive claim against him by Ms Song. The freezing orders in respect of Alliance’s property were discharged, as were the ancillary disclosure orders. The court granted leave for any party affected by the orders to apply to discharge or vary the orders on five working days’ notice to the other parties. Costs will lie where they fall.

Orders