Wang v MA
[2019] NZHC 821
•15 April 2019
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-002313
[2019] NZHC 821
UNDER Sections 24 and 39 of the Property (Relationships) Act 1976 IN THE MATTER
of an appeal against a refusal to extend time for making an application
BETWEEN
ZENGYUN WANG
Appellant
AND
GUOLIANG MA
Respondent
Hearing: 25 March 2019 Appearances:
N King for the Applicant
J Wickes for the Respondent
Judgment:
15 April 2019
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 15 April 2019 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Sinisa Law, Auckland
Loo & Koo, Auckland
Counsel: N King, Auckland
WANG v MA [2019] NZHC 821 [15 April 2019]
Introduction
[1] In a reserved judgment dated 21 September 2018, Judge E B Parsons declined Zengyun Wang’s application for leave to commence proceedings under the Property (Relationships) Act 1976 (the Act) outside the 12-month limitation period imposed under the Act post dissolution of a marriage. Ms Wang now appeals against the judgment. She says the Judge was wrong not to allow her to commence proceedings against her ex-husband, Guoliang Ma, 10 years after the dissolution of their marriage.
The law
[2]Section 24(1)(a) of the Act provides:
24 Time limits for making applications
(1)The following time limits apply in relation to applications made under this Act:
(a)an application made after a marriage or civil union has been dissolved by an order dissolving the marriage or civil union must be made before the expiry of the period of 12 months after the date on which that order takes effect as a final order:
…
[3] Section 24(2) goes on to provide that regardless of subsection (1), the Court may extend the time for making an application after hearing the applicant and any other person who would have an interest in the property that would be affected by the order sought and who the Court considers should be heard. This discretion must be exercised with regard to the Act’s guiding principle of achieving justice for the parties.1 In Beuker v Beuker the High Court listed four factors to consider when deciding whether to grant an extension:2
(a)the length of time between the expiry of the Act’s time limit and the bringing of the application;
(b)the adequacy of the explanation offered for the delay;
(c)the merits of the case;
1 Ritchie v Ritchie (1991) 8 FRNZ 197, [1992] NZFLR 266 (HC).
2 Beuker v Beuker (1977) 1 MPC 20 at 21.
(d)prejudice to the respondent.
[4] However, these factors are not a ‘comprehensive code’ and the weight given to each factor depends on the case.3 An extension may still be granted if a long period of time has lapsed since the marriage or civil union dissolved.4
[5] It was under this section that the Judge refused to extend the time for making an application.
[6] Section 39 of the Act provides for a right of appeal to the High Court against the refusal to make an order in proceedings under the Act. It is under this section that Ms Wang now appeals.
[7] The nature of such an appeal is, however, of critical importance in this case. A Judge’s refusal to extend time for making an application involves a discretionary decision, so the appeal is against the exercise of a discretion.5 Appeals against the exercise of a discretion follow the approach set out in May v May.6 The appellant bears the onus of satisfying this Court that the decision under appeal was wrong.7 To succeed on appeal against the exercise of a discretion,, Ms Wang must show that:
(a)The Judge made an error of law or principle;
(b)The Judge failed to take relevant considerations into account;
(c)The Judge took irrelevant considerations into account; or
(d)The decision was otherwise plainly wrong.
3 Ritchie v Ritchie (1991) 8 FRNZ 197, [1992] NZFLR 266 (HC).
4 In JNL v DN FC Wanganui FAM-2004-083-363, 21 August 2006 an extension was granted despite a 15-year delay.
5 Williams v Williams [2013] NZHC 1755.
6 (1982) 1 NZFLR 165 (CA) applied in Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40.
7 Williams v Scott [2014] NZHC 2547.
Grounds of appeal
[8] The notice of appeal dated 15 October 2018 sets out the following grounds of appeal:
(a)The Judge was biased (against Ms Wang, presumably, although it is not specified) because of her previous specialist practice as counsel for the child.
(b)The Judge was wrong to suggest that the evidence in support of an application to extend the time for making an application needed to conclusively prove the substantive claim.
(c)The Judge failed to say that she considered Ms Wang’s affidavit and annexures and submissions made on this evidence. If she had considered Ms Wang’s evidence on the reasons for the delay, the merits of the substantive case and the prejudice to Mr Ma, then the Judge could not have make the decision that she did.
(d)The Judge’s decision wrongly emphasised speedy resolution over justice.
(e)Finally, the Judge failed to recognise that an informal agreement Ms Wang entered with Mr Ma was invalid because it did not comply with certain requirements of the Act.
Application to admit further evidence
[9] Mr Ma objects to an application by Ms Wang to admit further evidence on this appeal. He says the documents were not included in the Family Court common bundle, produced as evidence in the Family Court hearing or previously disclosed.
[10] Ms Wang says that the additional documents corroborate evidence given by her in the Family Court. However, the test for the admission of further evidence is that the evidence must be cogent, material and could not reasonably have been
discovered at an earlier stage. It seems to me that the evidence was available for the Family Court hearing, but that Ms Wang chose not to adduce it. For instance, additional documents numbered 4 and 7 were exhibits A and B to an affidavit sworn by Ms Wang on 22 April 2016 and filed in the High Court caveat proceedings taken by the parties’ daughter. Counsel explains that he did not have the caveat proceedings at the time he drafted and filed these proceedings. He says other documents were in China.
[11] Some of the documents sought to be admitted are bank statements for accounts in the name of Mr Ma. One of the statements shows a total of $401,684.66. The exact same figure is set out in Ms Wang’s affidavit of assets and liabilities filed in these proceedings. Ms Wang must therefore have had access to the bank statements at the time these proceedings were drafted. The bank statements cannot be fresh evidence. In the circumstances, Ms Wang’s application to admit further evidence on this appeal is declined.
Bias
[12] Ms Wang submits that the Judge was biased because of her previous specialist practice as counsel for the child, which was reflected in comments she made at the outset of her judgment:8
[1] The sadness of seeing a child drawn into the conflict of their parents is unpalatable within custody disputes. When it is observed within property proceedings with a child of the parties who is aged 28 years old it is no less sad nor tragic.
[2] Such was the situation and backdrop for this matter which is a s 24 application for leave to bring proceedings out of time under the Property (Relationships) Act 1976 (PRA) which saw the parties’ daughter file evidence and be subject to cross-examination.
[13] Ms Wang called their only child, Lulu Ma, to give evidence. She was distressed when giving evidence and told the Judge that she did not want to be controlled anymore and that she was in a really bad position because she loved both her parents. She said:
8 [2018] NZFC 7198.
Their love is equal to me. But I’m not a Judge. I cannot decide for them. I’m hoping the Judge can solve their problem out and just I don’t want to be in the middle anymore to deliver the message.
[14] I am of the view that the Judge’s comments in [1] and [2] of her decision do not come close to the test for bias – whether the comments might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. The Judge’s comments are merely an acknowledgement of Ms Ma’s invidious position and not a criticism of either party.
[15] Ms Wang complains that the Court’s opinion was not put to her or her daughter to allow them to respond to the views held by the Judge. It was, however, unnecessary for the Judge to do so. She was not biased. Nor did she have a closed mind, as Ms Wang claims.
Evidential foundation required for application to extend time
[16] Ms Wang submits that although the Judge said that there must be an evidential foundation before the Court to support an application for leave, she wrongly required conclusive proof.
[17]The Judge initially stated:9
…While there is no onus placed upon an applicant seeking leave to extend the time for filing an application for division, there must still be an evidential foundation before the Court to support the application.
[18] Ms Wang submits that in the very next paragraph of her decision the Judge sets out a six page chronology, which clearly establishes an evidential foundation for her claim.10 She submits that the Judge must therefore have incorrectly required the evidence offered to show that Ms Wang’s substantive claim would succeed. The Judge later repeated the requirements for an evidential foundation when she said:11
There is an absence of any merit on a prima facie basis to her application. While I acknowledge that there is no onus that falls to Ms Wang to satisfy there is still a requirement for a basic evidential foundation to be established
– she has failed to do this. The evidence establishes that each of the parties
9 Above n 8, at [10].
10 Above n 8, at [11].
11 Ibid, at [58] – [59].
retained various property within both China and New Zealand including later payment to the applicant by the respondent. Each of the parties has gone on to purchase properties in New Zealand and to remarry.
I am not satisfied in the circumstances of this matter that leave should be granted.
[19] Although critical of the Judge’s articulation of the need for an evidential foundation, Ms Wang, in effect, submits that the Judge failed to properly assess the merits of her claim. This shades into the next ground of appeal, to which I now turn.
Failure to consider relevant evidence and submissions
[20] Ms Wang submits that the Judge’s decision does not state that she gave any consideration to her evidence as to the reasons for the delay, the merits of the case and the lack of prejudice to Mr Ma. If she had considered her evidence, Ms Wang submits that the Judge could not have refused her application to extend time to make an application for relationship property orders.
[21] As to the reasons for the delay, Ms Wang submits that she gave cogent evidence that Mr Ma controlled her, not only during their marriage, but also after their marriage ended in 2007. She also says she relied on assurances from Mr Ma that he would gift the property at 16 Wineberry Place, Albany, to their daughter, Lulu Ma. It was only after reading the comments of Associate Judge Bell in proceedings taken by her daughter in 2016 for an order that a caveat lodged against the title to the Wineberry Road property not lapse, that she realised that Mr Ma had misled her and her daughter. She also says that it was the comments of Associate Judge Bell that gave her the confidence to bring these proceedings.
[22] The Judge accepted that the comments of Associate Judge Bell were the catalyst for the proceedings. She said:12
The real explanation for the delay rests upon comments made in the High Court relating to the parties’ daughter’s claim to prevent a caveat lapsing.
And:13
12 Above n 8, at [39].
13 Ibid, at [43].
The real trigger for applying for leave appears in fact to have been the comments made by the Associate Judge in the High Court late last year when the caveat decision was released.
[23] The Judge also commented that Ms Wang’s claim that Mr Ma controlled her by threatening to withdraw support for her residency application was spent by 1 November 2006 when she obtained New Zealand residency. Ms Wang’s daughter also turned 18 in 2008 and it must have been clear to Ms Wang then that Mr Ma’s assurance that he would gift the Wineberry Place property to their daughter (if there was evidence to support such an assurance) had not been carried through. The Judge was therefore of the view that there was no adequate explanation for the delay from 2008 to the judgment of Associate Judge Bell in 2016. This was a finding that was open to Judge.
[24] As to an assessment of the merits of the claim, the Judge commented that given the inadequacies in the evidence filed (including the lack of corroborative or supporting evidence in terms of valuations, and bank balances), it was not possible to assess the merits with absolute certitude. Nonetheless, the Judge found that Ms Wang and Mr Ma had effected a separation of the property they held at the time of their separation in October 2005, notwithstanding that the various written agreements they entered into did not comply with the formal requirements for a contracting out agreement set out in the Property (Relationships) Act.
[25]The Judge concluded:14
...Ms Wang held the funds from the 2 properties in China, the business in China and NZD$80,000 payment from Mr Ma and his wife, funds in bank accounts, (amounts not clear). Mr Ma held the business in New Zealand, the house at Wineberry, funds held in bank accounts (amounts not clear), and a vehicle.
It is acknowledged that specific values cannot be ascribed to the property retained by each party 11 years ago, what is clear is that there was property in each country and there was written agreement for Ms Wang to retain what was in China (where she had then remained) and for Mr Ma to retain what was in New Zealand. This is what the parties agreed to and went on to achieve and then subsequently rely upon. The Wineberry Place property that Mr Ma retained was placed in trust with the parties’ daughter as final beneficiary – a position that cannot be revoked.
14 Above n 8, at [48] – [49].
[26] The Act provides for the just division of relationship property between spouses when their relationship ends by separation. What the Judge said, in effect, was that she was not satisfied on the evidence before her that the separation of property effected between Ms Wang and Mr Ma may have been unjust. In other words, Ms Wang’s claim did not have obvious merit.
[27] As an example, the Judge had conflicting and inconsistent evidence before her about the value of the furniture business in China that Ms Wang received as part of the separation of property between the parties. In her initial affidavit, Ms Wang did not ascribe a value to the business. She merely stated that she kept the furniture business in China together with an unspecified “sum of Chinese money”. In his affidavit, Mr Ma said the business comprised of a shop of 3500 m2 and a factory of about 500 m2. in Tiajin. The business had about 30 staff members. Mr Ma valued the business at RMB 3.5 million. In a reply affidavit, Ms Wang said the business consisted only of a shop and not a factory. She did not take issue with the number of staff members. However, she said the value of the business was only RMB 500,000, and that consignment goods, which they did not own, may have been worth up to RMB 3.0 million. Neither Ms Wang nor Mr Ma specified a date for their respective valuations. No formal valuations were provided. No financial statements for the business were provided.
[28] In her initial affidavit, Ms Wang says that on 7 December 2005 she sold two properties in China that were also hers in terms of the separation of property with Mr Ma for RMB 170,000 and RMB 230,000. She says that money was used to pay the company debts and close the company. Again, no corroborative or supporting evidence was provided for this statement. She also says some of the company debts (RMB 750,000) were for furniture sent to Mr Ma’s furniture business in Auckland for which payment had not been received. Mr Ma denies that his business had any association with Ms Wang’s business in China. Again, there is no corroborative or supporting evidence for either of the parties’ statements.
[29] In the end the Judge was left only with three documents evidencing the parties’ separation and divorce and the separation of their property with all the couple’s assets in China belonging to Ms Wang and all the couple’s assets in New Zealand belonging
to Mr Ma. She was granted residence in New Zealand on 1 November 2016, and bought a property at 26 Amehurst Place, Albany on 19 October 2007, utilising the sum of $80,000 received from Mr Ma as a deposit., Nevertheless, Ms Wang lived primarily in China between 2009 and 2012, where she set up another furniture business. Mr Ma has lived in New Zealand from 2002, when he set up a furniture business in Albany in a 300m2 shop utilising RMB 700,000 that he brought with him from China. The first of the documents evidencing the parties’ separation dated 17 October 2005 recites the fact that the parties had lived separately for as long as three years (that is, from 2002 when Mr Ma moved to New Zealand).
[30] Given the inadequacies in the evidence filed (including the lack of corroborative or supporting evidence), it was open to the Judge to conclude that there was a lack of obvious merit in Ms Wang’s claim.
[31] As to prejudice to Mr Ma if the Court granted Ms Wang’s request to extend time for making an application, the Judge noted that Mr Ma had remarried in 2007 and had a son with his second wife. Mr Ma and his second wife had also bought and sold properties together, all of which Ms Wang now claimed an interest in as having been “purchased with mutual money”. The Judge was satisfied that there would be serious injustice caused to Mr Ma if he had relied on the written agreements with Ms Wang to separate their property in the organisation of his affairs over the last 12 years. The Judge found that Mr Ma’s property and interests were now intermingled with his second wife, with which he has had another child. The Judge noted that Ms Wang herself had also remarried and purchased property in New Zealand.
[32] Again, it was open to the Judge to find prejudice to Mr Ma if the Court extended time for Ms Wang to make an application under the Act.
Emphasis on speedy resolution over justice
[33]Ms Wang here points to a statement by the Judge that:15
Section 1N of the PRA provides for access to justice as well as for there to be quick and expeditious resolution afforded to parties in respect of disputes between them.
15 Above n 8, at [54].
[34] Ms Wang submits that this statement is incorrect. She says s1N actually provides:
that questions arising under this Act about relationship property should be resolved as inexpensively, simply and speedily as is consistent with justice.
[35] Ms Wang submits that the Judge’s emphasis on a quick and speedy resolution in this proceeding, rather than a decision consistent with justice, denied her justice. Ms Wang submits that this goes back to the opening paragraph of the judgment where the Court found these proceedings “unpalatable’ “sad” and “tragic” and looked to end the proceedings, even if this meant a decision inconsistent with justice for her.
[36] The Judge’s paraphrasing of s1N does not invalidate her judgment. There is no evidence that the Judge wrongly chose a speedy resolution inconsistent with justice. Ms Wang had the opportunity to file whatever evidence she wished in the proceeding. An oral hearing of her application was set down in the Family Court. Evidence was given by three deponents between approximately 12 noon and 4.30 pm on 27 August 2018. The Judge reserved her decision and issued a 61 paragraph reserved judgment on 21 September 2018. The Judge’s decision cannot be characterised as inconsistent with justice.
Court’s failure to apply legislation
[37] Ms Wang submits that the Judge failed to apply s 21M of the Property (Relationships) Act, which provides:
If an agreement purporting to be made under s 21 or s 21A or s 21B is void or is avoided or is invalid or unenforceable (including an agreement set aside under s 21J) the provisions of this Act have effect as if the agreement had never been made.
[38] In effect, Ms Wang says that the Judge should have ignored the three written agreements between the parties, which separated the parties’ property between them because they did not comply with the formal requirements of the Act.
[39] The Judge recognised that the agreements did not comply with the formal requirements of the Act, but said that the analysis she was required to undertake on the application made pursuant to s 24 of the Act was quite separate and distinct from any
analysis required under ss 21F (Agreement void unless complies with certain requirements) or 21H (Court may give effect to agreement in certain circumstances).
[40] The Judge did not validate the agreements, but did have regard to them when considering the overall situation and factors of prejudice.
[41] It is clear that both Ms Wang and Mr Ma acted for many years on the basis that there was a valid agreement between them as to the separation of their property. If the agreements were to be ignored, Ms Wang’s actions would also come under scrutiny, including the sale of Mr Ma’s parents’ apartment in China, in respect of which Mr Ma claims that Ms Wang falsified his signature. The value of the furniture business in China on the date of separation would also be relevant.
Result
[42] The Judge’s decision was the exercise of a discretion. An appellate judge cannot overturn it, even if he or she would have decided it differently, unless the applicant shows that the Judge made an error of law or principle, took into account irrelevant factors, failed to take into account relevant factors or was plainly wrong. An appeal is not a general appeal on the merits.
[43] It is clear that the Judge considered all relevant factors, including the length of the delay, the reasons for the delay, the merits of the case and prejudice to Mr Ma. She balanced all these factors and came to a reasoned decision. It is not my role on appeal to determine whether undue or inadequate weight has been given to some factors, unless the decision is plainly wrong. Weighing and balancing is an integral part of the Court’s discretion. The decision is not plainly wrong. The appeal is therefore dismissed.
Woolford J
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