Wang v MA
[2020] NZCA 21
•21 February 2020 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA441/2019 [2020] NZCA 21 |
| BETWEEN | ZENGYUN WANG |
| AND | GUOLIANG MA |
| Court: | Collins and Goddard JJ |
Counsel: | Applicant in person |
Judgment: | 21 February 2020 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThe respondent is entitled to costs for a standard application on a band A basis plus disbursements.
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REASONS OF THE COURT
(Given by Collins J)
Introduction
Ms Wang seeks leave to appeal a decision of the High Court, in which Woolford J dismissed an appeal by Ms Wang from a decision of the Family Court at Auckland.[1] In the Family Court judgment, Judge Parsons dismissed Ms Wang’s application for leave to bring proceedings out of time under the Property (Relationships) Act 1976 (the Act).[2] Woolford J later declined Ms Wang’s application for leave to appeal to this Court.[3]
Background
[1]Wang v Ma [2019] NZHC 1821 [High Court appeal judgment].
[2]Wang v Ma [2018] NZFC 7198 [Family Court judgment].
[3]Wang v Ma [2019] NZHC 1699 [High Court leave judgment].
Ms Wang, who represents herself, married Mr Ma in China in March 1988. They separated in 2005. By this time the parties had property interests in New Zealand and China. The parties’ marriage was dissolved in China on 26 March 2007, after which Mr Ma remarried. Ms Wang has also since remarried. Agreements as to the division of relationship property were reached in 2005 and 2007.
On 23 March 2017 Ms Wang applied to the Family Court at Auckland for leave to pursue orders concerning the allocation of relationship property. Ms Wang’s application was made under s 24 of the Act. It alleged that she had been coerced into signing the property agreements.
Section 24(1)(a) states that applications under the Act must be brought no later than one year after a dissolution of marriage is granted. The Family Court can extend time for commencing an application under s 24 of the Act after considering:[4]
(a)the lapse of time between the expiration of the time limit set out in the Act, and the bringing of the application;
(b)the reasons for the delay;
(c)the merits of the case; and
(d)any prejudice to the respondent.
[4]Beuker v Beuker (1977) 1 MPC 20 (SC) at 21.
Judge Parsons was satisfied Ms Wang had not adequately explained her extensive delay in bringing her application and that there was no merit in her case. In dismissing Ms Wang’s application, the Family Court Judge also said that Mr Ma would be unreasonably prejudiced by allowing Ms Wang to contest the division of the property after this lengthy delay.[5]
[5]Family Court judgment, above n 2, at [57]–[58].
When dismissing Ms Wang’s appeal from the Family Court judgment, Woolford J applied the leave criteria set out in Beuker v Beuker.[6] He also concluded that the decision Ms Wang wished to appeal involved the exercise of judicial discretion. Applying the criteria for determining whether a discretionary decision can be impugned, Woolford J concluded that the Family Court judgment was based on correct principles, took into account relevant considerations and was not based upon irrelevant factors.[7] Nor was the Family Court decision plainly wrong.
[6]Beuker v Beuker, above n 4.
[7]High Court appeal judgment, above n 1, at [42]–[43].
In his leave judgment, Woolford J observed that Ms Wang had filed her application for leave to appeal out of time but that, more importantly, she had failed to satisfy the criteria for leave to bring a second appeal.[8]
[8]High Court leave judgment, above n 3, at [6].
Ms Wang’s appeal is governed by the Senior Courts Act 2016.[9] Section 60(1) of that Act provides that a decision of the High Court determining an appeal from the Family Court will be final, unless a party obtains leave for a second appeal. Before leave can be granted, the applicant must demonstrate the proposed appeal raises a question of law or fact that engages serious argument and involves sufficient important public or private interests to outweigh the cost and delay of a further appeal.[10]
[9]Pursuant to the Property (Relationships) Act 1976, s 39B.
[10]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Ms Wang’s application for leave to appeal to this Court was filed one day out of time.[11] An extension of time was, however, granted by a Deputy Registrar pursuant to r 5A(1)(c)(ii) of the Court of Appeal (Civil) Rules 2005.
Grounds of application
[11]Court of Appeal (Civil) Rules 2005, r 14(2)(b).
Ms Wang identifies the following factors which she says justifies us granting her application for leave to appeal to this Court:
(a)the High Court Judge wrongly declined to admit “fresh” evidence, which Ms Wang says addresses factual errors in the Family Court judgment;
(b)there are factual errors in the judgments of the Court below, which should be corrected;
(c)the Court below focused too much on bringing finality to the dispute rather than addressing the justice of the case. There were explanations for her delays, which were not adequately considered; and
(d)as a consequence, the division of relationship property between Ms Wang and Mr Ma was unfair and resulted in Mr Ma obtaining a greater share of the property than he was entitled to receive.
Analysis
Ms Wang has not established that her case involves a seriously arguable question of fact or law that justifies this Court granting leave to enable her to pursue her proposed appeal. In particular:
(a)The Court below correctly applied the criteria in Beuker v Beuker, when concluding that Ms Wang should not be granted leave under s 24 of the Act to pursue her application to set aside the agreements governing the allocation of the parties’ relationship property.
(b)We are not satisfied that there is any basis to interfere with the way the Family Court exercised its discretion under s 24 of the Act.
We appreciate that Ms Wang’s concerns are important to her, but that is not the test for leave being granted by this Court under s 60 of the Senior Courts Act. Ms Wang’s proposed appeal does not involve any issue of public or private importance that justifies the cost and delay that would be associated with a further appeal.
The judgments of the Court below involved the orthodox application of well‑established principles and do not warrant leave being granted to Ms Wang to pursue her proposed second appeal.
Result
The application for leave to appeal is declined.
Mr Ma, who is represented, is entitled to costs for a standard application on a band A basis plus disbursements.
Solicitors:
Loo & Koo, Auckland for Respondent
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