Wang v MA - [2019] NZHC 821

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…

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 Wang v MA

Details

AGLC: Wang v MA [2019] NZHC 821
Case: [2019] NZHC 821
Decision Date: 15 April 2019

CaseChat Overview and Summary

Zengyun Wang appeals against a decision by Judge E B Parsons to refuse her leave to commence proceedings under the Property (Relationships) Act 1976 outside the 12-month limitation period. Ms Wang sought to bring proceedings against her ex-husband, Guoliang Ma, 10 years after their marriage was dissolved. The appeal was dismissed by Justice Woolford. The appeal against the Judge's refusal to extend time for making an application involves a discretionary decision. The appellant bears the onus of satisfying this Court that the decision under appeal was wrong. To succeed on appeal, Ms Wang had to show that the Judge made an error of law or principle, failed to take relevant considerations into account, took irrelevant considerations into account, or that the decision was otherwise plainly wrong. 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. The appeal was therefore dismissed.

Orders