Sotana v Vongla

[2017] NZHC 2870

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-633 [2017] NZHC 2870

BETWEEN

KETMANY SOTANA

Appellant

AND

CHANTHALA VONGLA Respondent

Hearing:	20 November 2017
Counsel:	L C Ord for Applicant G J Hamlen-Williams for Respondent
Judgment:	22 November 2017

JUDGMENT OF WILLIAMS J

Introduction

[1]      The parties to this appeal formed a relationship in 2008, married in 2010 and separated in 2016.  The division of their relationship property was the subject of a substantive decision of Judge Grace in the Family Court on 7 July 2017.1

[2]      The appellant raises a number of issues in her appeal against that decision. She applies to adduce further evidence in relation to one of those issues – that is the status of a sum of $10,000 given to the couple by the appellant’s mother. The appellant says this was a loan, the respondent says it was a gift.  Judge Grace found that the claim it was a loan was not proved in the absence of evidence from the mother.

[3]      The appellant now wishes to have admitted for the purposes of the appeal, the affidavit of her mother (Khamphiou Douangngeun).  The appellant argues that the

mother was unavailable to give evidence at the time of the hearing in July because she

1      Vongla v Sotana [2017] NZFC 5473.

SOTANA v VONGLA [2017] NZHC 2870 [22 November 2017]

was out of the country; the evidence is relevant, cogent and material; and it is therefore in the interests of justice that it now be admitted. The respondent disagrees. He argues that the evidence was available and could have been called at first instance, and in any event, is not sufficiently material or cogent.

[4]      Judge Grace addressed the issue of the $10,000 gift or loan in the following terms:

[14]     The next matter raised by Ms Sotana is a loan which she says was made by her mother to the parties and there appears to be some confusion in her evidence as to what the purpose of that loan was for because it is suggested it was for the purposes of buying the house.   The house, however, was purchased before the loan was made and the advance was made at a wedding. Mr Vongla says it was a gift to the parties but Ms Sotana says it was a loan.

[15]      There is no evidence from the mother, so I am faced with the parties’ respective views. What is clear from the evidence is that the parties have had a discussion during the course of the relationship and it appears common ground that Ms Sotana took the view that her mother could not afford the advance of $10,000 so the parties agreed to repay her, according to Mr Vongla a sum of $4,000 which he says was repaid in an effort to assist the mother. In submissions today, Ms Ord says that the arrangement for people from the culture that these parties come from is that this is “milk money” and is always to be returned during the course of the relationship to the party who gave it, and there is no evidence of that.   Ms Sotana has not mentioned that as I understand, as I see it, in her evidence and Mr Vongla has not been able to comment on that. So, in the face of the dispute between the parties and in the face of no evidence from the mother, that argument, in my view, must fail.

(emphasis added)

The evidence

[5]      The affidavit of Ms Douangngeun discusses the loan. She said that the parties in this appeal had commitments that exceeded their income around the time of their wedding and so they asked initially if they could borrow $5,000 from the mother’s partner (Bob Bell) and this was increased to $10,000 when a further $5,000 did not materialise from another family source.  She said a cheque for $10,000 was handed over prior to the wedding and she said her daughter promised at the time to pay it back.

[6]      In addition, Ms Douangngeun said she spent $5,635.59 on her credit card to make purchases for the wedding, including the purchase of the appellant’s wedding dress and respondent’s suit.

[7]      In Ms Douangngeun’s affidavit, she also spoke about jewellery valued at around $20,000 which she had lent to her daughter. It was in the appellant’s possession at the time her and the respondent’s home was burgled.  The jewellery was stolen.  It was insured. The subsequent insurance payment of approximately $20,000 was made to the appellant and respondent rather than Ms Douangngeun.  She said the money was never forwarded to her even though the jewellery belonged to her.  She said the parties agreed to treat the money as a loan to them.

[8]      Finally, Ms Douangngeun explained that she was out of the country from

28 June 2017 until 14 August 2017 and so could not be present at the hearing in the Family Court.  Nor could she arrange for an affidavit to be sworn in Laos (where she was at the time).  Her English was insufficiently fluent to enable that to take place even if a lawyer could be found capable of taking the deponent’s sworn statement.

[9]      The respondent provided an affidavit in reply to that of Ms Douangngeun.  In it Mr Vongla said that the $10,000 was originally intended to be a dowry paid to the appellant’s mother and partner at the wedding.   He said this was in fact all show because the cheque had actually been written out by Bob Bell. It was simply provided to make the dowry look more impressive than it was.   However, at the reception

Ms Douangngeun handed it back to the appellant in front of the assembled guests to signify it was being gifted back to the married couple.  He appended a photo taken at the wedding reception showing, he said, Ms Douangngeun taking the cheque out of

Mr Bell’s hand and giving it to her daughter signifying (he said) that it was to be treated as a wedding gift. It was, he said, duly banked in the couple’s joint account on

26 October 2010.

[10]     The respondent did say however, that some of the $10,000 was repaid – around

$4,000 – but this, he said, was out of a sense of moral obligation to his mother-in-law who was not well off, rather than a legal obligation.  Ms Douangngeun denied any repayments were made.

[11]     As to the credit card expenditure, the respondent acknowledges that a suit was bought for him with it, but he said he never understood this expenditure had to be repaid. There was no suggestion of that at any stage, he said. The respondent admitted

that the jewellery insurance pay-out was received by the parties and spent on their general needs, though he said not all of the jewellery taken belonged to his former mother-in-law.  He said that his former mother-in-law knew they had been paid and had never asked for the proceeds to be forwarded until now.

[12]     Although the issue of the insurance payment was not raised in the application to adduce new evidence, Ms Hamlen-Williams, for the respondent, did not oppose an effective amendment to the application to include evidence in relation to that item as well. I will proceed on that basis accordingly. That said, Ms Ord advised that she did not wish to take up the question of the credit card wedding expenditure, so I set that matter to one side accordingly despite its mention in the affidavits.

Principles

[13]     The  principles  applicable  to  an  application  to  admit  evidence  on  appeal pursuant to s 39B(3) of the Property (Relationships) Act 1976 are well understood. The broad test is “the interests of justice”.  Ideally the evidence should be fresh in the sense of having been unavailable to be called at the first instance trial. Further, it must be relevant, material and cogent.  It will not be in the interests of justice to allow an appellant to use an appeal as a means of plugging a gap identified at first instance that could have been covered off with reasonable diligence. Nor is an appeal to be treated as an opportunity to recast or bolster a failed case.2   As the Court of Appeal noted in Hodgson v Hodgson:3

… the interests of justice thus require a broad assessment of all surrounding circumstances in order to determine whether the need for finality and the risk of turning appellate consideration into a full-blown relitigation of the case at first instance, are outweighed by the cogency of the evidence, the circumstances that led to its omission at trial, and the prospect that excluding it will produce a miscarriage of justice.   Cogency requires at least a preliminary assessment of how strong the proposed evidence is, and what its effect is likely to be on the outcome.

2      See  generally Nation v  Nation  [2005] 3 NZLR 46 (CA) and Hodgson v  Hodgson [2015] NZCA 404, [2015] NZFLR 979.

3      Hodgson v Hodgson, above n 2, at [50].

Fresh evidence

[14]     In my view, this evidence is not fresh. Rather it was available with reasonable diligence to be given at the hearing on 7 July 2017.  According to the pre-hearing timetable the subject of directions from Judge Ellis on 16 May, evidence from the parties was due to be filed and served on 13 June 2017. Ms Douangngeun was still in New Zealand at that point and could have sworn an affidavit confirming the status of the $10,000 and the insurance payment.

[15]     Ms Ord’s response was that Ms Sotana did not know that the status of either asset was in issue until 3 July when Mr Vongla belatedly filed his affidavit denying either was a loan.  But on 15 June, nearly two weeks before Ms Douangngeun left the country, the respondent had filed an affidavit setting out his proposed division of the relationship property, and it was clear by the terms of that affidavit that he did not consider either the insurance pay-out or the $10,000 were relevant to that question. It would have been clear then from that point that the status of both payments was in contention.

[16]     I do not therefore accept that Ms Douangngeun was unavailable at the relevant time.  Nor do I accept that the appellant was taken by surprise by the respondent’s stance.

Relevant, material and cogent

[17]     The proposed  evidence  is  plainly relevant  to  the division  of relationship property, but I do not consider that it is so material and cogent that the interests of justice require it to be admitted for the purposes of this appeal.

[18]     Ms  Hamlen-Williams  was  somewhat  right  when  she  submitted  that  the evidence of Ms Douangngeun in relation to the $10,000 did not strictly speaking corroborate the appellant’s evidence. The appellant initially said that the $10,000 was to purchase a home and meet debt.  The appellant then said on a second affidavit that it was to assist with mortgage repayments and other expenses.  But in her affidavit

Ms Douangngeun did not fully support either of those options. Instead she emphasised

expenses of the wedding as the primary driver. She said the appellant and respondent could not meet the costs of the wedding in addition to their other regular outgoings.

[19]     As to the insurance payment, there was an inconsistency at least between counsel submissions (in the Family Court counsel suggested the jewellery was separate property) and the appellant’s evidence (that the jewellery was on loan).

Ms Ord quite properly submitted that this inconsistency was simply due to the fact that she had been instructed two weeks prior to the hearing and had made an error. This inconsistency is thus rendered less significant, but it is nonetheless present in the mix.

[20]     A further factor against admission of the evidence is the seemingly very cogent response from Mr Vongla.  He produced evidence supported by a photograph which seemed very much to confirm that the $10,000 cheque was paid at the wedding itself not (as the appellant and her mother deposed) prior to the wedding.  This lends real strength to the respondent’s narrative of a gift.

[21]     A further factor is that in the Family Court, Judge Grace offered the parties an opportunity to adjourn what was to be a submissions only hearing to allow cross- examination on the jewellery issue as there was a contest over the primary facts. While the availability of Ms Douangngeun was not particularly an issue at the time, any adjournment would inevitably have provided a significant opportunity for the evidence in relation to ownership of the jewellery and the status of the $10,000 to be further addressed  in  an  affidavit  from  her.    After  discussing  the  matter  with  counsel,

Ms Sotana decided to press on.  She said this was because the delay would be likely to be lengthy (approximately nine months) and the conflict needed to be brought to an end.   One can understand why Ms Sotana made that call.   But she did so having weighed the pros and cons with her counsel.  This factor too counts against allowing a reopening of the issue when matters have not turned out the way Ms Sotana would have wanted.

[22]     Ms Sotana also submitted that for a lengthy period in the lead up to trial, she was unrepresented.  She had instructed counsel to assist her with respect to the order for sale of the relationship home.  But she had represented herself when her evidence

was filed. She did not instruct counsel in relation to the relationship property division issues until very close to the 7 July hearing.  While I am not unsympathetic to the difficulties lay litigants will face in constructing a relevant and cogent case particularly in relationship property matters, the fact is Ms Sotana had shown herself able to instruct counsel where necessary and Mr Vongla had done the same.  Even though neither of them are wealthy people. Indeed, Ms Sotana said in evidence that she earned more than Mr Vongla.

[23]     Finally, I note that the conflict between the deponents in relation to the $10,000 and the insurance pay-out will inevitably mean extensive cross-examination will be required. A great deal more court time will be needed to resolve an issue which though clearly significant to the parties, relates only to a modest sum in value terms.  While this is not decisive, and we are not facing a potential full-scale re-litigation of the case, it is nonetheless also a factor to be weighed in the balance.

[24]     When all of these matters are weighed, I am not satisfied that it is in the interests of justice to allow this evidence to be admitted.

[25]     The application is dismissed accordingly.

[26]     The respondent will be entitled to costs on a Category 2A basis.

Williams J

Solicitors:

Ord Legal, Barristers and Solicitors, Wellington for Appellant

R A Brace, Solicitor, Porirua for Respondent