Wu v Tan
[2023] NZHC 3747
•18 December 2023
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://
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2023-454-028
[2023] NZHC 3747
UNDER the Property (Relationships) Act 1976 IN THE MATTER
of an appeal
BETWEEN
YANLAN WU
Appellant
AND
KAI TAN
Respondent
Hearing: 14 August 2023 Appearances:
D Zhang for Appellant
Respondent in person with Ms Ping Peng as Interpreter
Judgment:
18 December 2023
JUDGMENT OF GRICE J
Table of Contents
Introduction and background [1]
Approach on appeal[7]
The Family Court hearing [11]
Whether the advances were loans or gifts[15]
Presumption [34]
Analysis on first and second grounds of appeal [37]
WU v TAN [2023] NZHC 3747 [18 December 2023]
Third ground of appeal [52]
Gifts between spouses — the legal framework[69]
Analysis[74]
Conclusion [82]
Costs [84]
Introduction and background
[1] This is an appeal from a judgment of the Family Court at Palmerston North determining the division and classification of the parties’ property under the Property (Relationships) Act 1976 (the Act).1
[2] Ms Wu and Mr Tan married in October 2013. They separated in mid-February 2017 when Mr Tan moved out of the family home. There are no children of the relationship. There is no dispute that the relationship for the purposes of the property division lasted some three-and-a-half years.
[3] The Family Court made determinations on various aspects of the division of their property. At the time of separation, the parties owned a motel business and land in Palmerston North (the motel), which they agreed was relationship property to be divided equally. The other main property they owned was a house in Auckland (the Auckland house), which was rented out. Ms Wu claimed the Auckland house was her separate property. The Family Court determined it was relationship property.
[4] There is no dispute that Mr Tan’s parents sent money from China which went into the purchase of both the Auckland house in 2013 and the Palmerston North motel in 2015. The Judge found the Auckland house was relationship property to be divided equally between the parties but that the contributions by Mr Tan’s parents were loans and to be deducted from the relationship property pool before division. The judgment made various other adjustments for contributions and services provided by the parties. These are not the subject of this appeal.
1 Wu v Tan [2023] NZFC 3368 [Family Court decision].
[5] There are two main issues on appeal, although formulated in the notice of appeal as three issues. The first main issue relates to the determination that various contributions by Mr Tan’s parents, who reside in China, were loans not gifts. The money paid by Mr Tan’s parents was used by the couple in part to finance the purchase of the Auckland house in 2013 and for a contribution toward the purchase of the Palmerston North motel in 2015. The Judge found these loans must be deducted out of the relationship property pool before division. The second main issue relates to whether or not in 2016 Mr Tan gifted the Auckland house property to Ms Wu such that it became her separate property.
[6] The amount of monies provided by Mr Tan’s parents totalled $520,000. The Judge directed that the Auckland house be sold and outstanding debts, including the advances to Mr Tan’s parents, be repaid. The motel was to be divided between the parties and for that purpose was to be sold, with Ms Wu having an opportunity to purchase it.2 The balance of proceeds of the Auckland house and the motel were to be divided equally, with some adjustments which are not in dispute.
Approach on appeal
[7] The Act allows a general right of appeal from a decision of a Family or District Court to the High Court.3 These proceed by way of rehearing. The appeal court considers the issues that had to be determined in the proceeding below on the basis of the evidence appearing in the lower court’s record, but applies the law as it is when the appeal is heard.4 “By way of rehearing” does not mean there is to be a complete rehearing of the evidence, as in a new trial.
[8] The leading decision on the approach of the appeal court to general appeals is Austin, Nichols & Co Inc v Stichting Lodestar.5 The appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal.6 In discharging that onus, the appellant must identify the respects in which the judgment under appeal is said to be in error.7 The appeal court has the responsibility of arriving
2 At [103].
3 Property (Relationships) Act 1976, s 39(1).
4 Pratt v Wanganui Education Board [1977] 1 NZLR 476 (SC) at 490.
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.6 At [4].
7 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
at its own assessment of the merits of the case.8 The extent of the consideration the appeal court gives to the decision appealed from is a matter for its judgement.9
[9] Where the court below had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses), the appeal court may rightly hesitate to conclude that findings of fact are wrong.10 This is particularly so where the case depends largely on disputed oral evidence, even where no issue of credibility arises.11
[10]In Austin, Nichols, Elias CJ, writing for the Court, said:12
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.
The Family Court hearing
[11] The Judge noted that during the relationship the parties had purchased two properties, the house property in Auckland and the motel business (and land) in Palmerston North. She noted both were purchased in part with advances provided by Mr Tan’s parents.13 Her Honour noted that the Auckland house was initially registered in the parties’ joint names but was transferred to Ms Wu’s sole name in January 2016. At that time, the mortgage to the ANZ bank was repaid with money borrowed from the BNZ bank. This transaction was related to the purchase of the motel.14 At the time of separation, the parties owned various property, including KiwiSaver accounts and a motor vehicle, as well as the motel and Auckland house, with various loans from BNZ outstanding in relation to those properties.15
[12]The main issues before the Family Court were:
8 Austin, Nichols & Co Inc v Stichting Lodestar, above n 5, at [5].
9 At [5].
10 At [5].
11 Fonterra Co-operative Group Ltd v McIntyre and Williamson Partnership [2016] NZCA 538 at [156]–[159].
12 Austin, Nichols & Co Inc v Stichting Lodestar, above n 5.
13 Family Court decision, above n 1, at [8].
14 At [9].
15 At [10].
(a)whether the advances from Mr Tan’s parents were gifts, and therefore relationship property to be shared equally, and
(b)whether the Auckland house and outstanding loan were the separate property of Ms Wu.
[13] A further outstanding issue related to compensation under s 18B of the Act, sought by way of cross claims by each party.16
[14] Consequential orders for the sale of the Auckland house, the Palmerston North motel, filing of Inland Revenue Department documentation and related orders were sought.17
Whether the advances were loans or gifts
[15] Under the heading “Advances provided by Mr Tan’s parents”, the Judge outlined the facts as she found them in relation to these as follows.18 Mr Tan’s parents advanced two lots of funds to the couple. The first advance was in 2013 and amounted to $235,000 (or $236,000), of which $195,000 was applied to the purchase of the Auckland house, $15,000 (or $25,000) towards the purchase of a cleaning business and the remainder towards the purchase of the household effects. The second advance of $285,000 was made in 2015 and was applied entirely to the purchase of the motel.
[16] Ms Wu said the advances from Mr Tan’s parents were gifts and had been shocked to see the loan documents after the separation. She was aware that $195,000 was being gifted at the time of the purchase of the Auckland house, which was applied to the deposit. She was unaware of the total advance being $235,000 (or $236,000). She relied on the presumption of advancement, citing N v N, which held that such a presumption was rebuttable, but only by acts or declarations that are reasonably contemporaneous to the transaction.19 Ms Wu submitted the loan documents prepared by Mr Tan after the advances were not admissible in his favour to rebut the
16 At [12].
17 At [13].
18 At [20] onwards.
19 At [24], citing N v N [Relationship property: loan] [2010] NZFLR 161 (HC) at [47]; and Shepherd v Cartwright [1995] AC 431 (HL).
presumption of advancement and they were intended to create a false impression that they had been created contemporaneously. In addition, Mr Tan had refused to provide a copy of the loan documents to Ms Wu for forensic examination. In another hearing he had admitted he had created the documents on his own.20 Ms Wu also said that the affidavits of Ms Xue, Mr Tan’s mother, stating that the advances were loans were inadmissible to rebut the presumption of advancement.
[17] In relation to the 2013 advance, Ms Wu said that Mr Tan told her that his mother had emailed the bank gifting certificate to him to secure the loan to purchase the Auckland property and she never received an email but Mr Tan had physically passed her a copy of the gift certificate. She said that gift certificate evidenced an “unconditional gift” with no expectation of the funds being “returned” or “repaid”. Therefore, Mr Zhang on behalf of Ms Wu submitted:
(a)Mr Tan’s assertion of falsely signing the document on his mother’s behalf cannot be trusted, given that it amounts to an admission of criminal conduct.
(b)Mr Tan’s declaration of the falsity of the gift certificate is inadmissible, again relying on the rules in N v N and Shepherd.21
(c)Ms Xue’s phone number on the gift certificate is strong evidence the gift was genuine, given that the bank would have been able to contact her to confirm that she had signed the certificate.
[18] In relation to the 2015 advances, Ms Wu said that Mr Tan’s parents were wealthy and capable of making significant advances. She disputes that they used their life savings (as suggested by Mr Tan and his mother) and said that the funds were inconsequential to them. Ms Wu accepted she did not document the advances from her own parents contributing to the purchase of an earlier Auckland property bought by her. Ms Wu gave evidence of a conversation she had with Mr Tan’s father, who she said was a cardiologist and now works managing suppliers at a hospital, which
20 At [25].
21 N v N, above n 19; and Shepherd v Cartwright, above n 19.
provides a significant income. In addition, she said Mr Tan had made offers on other motel businesses which were much more expensive than the motel they purchased, evidencing that his parents were able to assist in the purchase of a more expensive motel.
[19] Mr Tan, who was self-represented, submitted the advances were loans for the following reasons:
(a)His mother gave evidence and asserted that the advances were loans (not gifts) and that she did not sign the gift certificate for the 2013 advance.
(b)His parents advanced a total sum of $520,000, being their whole life savings. It was impossible to suggest they would entertain an advance that amounted to the entirety of their savings as a gift.
(c)Section 20 of the Act does not require that relationship debts be documented as formal loans. Mr Tan gave the example of Zhang v Li, involving an undocumented advance from Chinese parents to their children, as supporting his assertions.22
[20]The Judge summarised the evidence in support of Mr Tan’s claims as follows:23
(a)Mr Tan accepted that he signed the gift certificate (for the 2013 advance) on behalf of his mother without her knowledge;
(b)in Chinese culture, loans between family members are not generally documented;
(c)his mother transferred the money for the purchase of the motel before obtaining supporting loan documents to facilitate a timely settlement; and
22 Zhang v Li [2017] NZHC 129.
23 Family Court decision, above n 1, at [34].
(d)he made offers on more expensive motels without confirming that his parents would loan the required funds.
[21] In addition, Mr Tan’s mother, Ms Xue, gave evidence. She said that in China, cardiologists are not particularly wealthy, the advances comprised her and her husband’s entire life savings, they had had to borrow from relatives to make the advances, they were unable to continue paying for a lawyer for Mr Tan, that in Chinese culture loans between family members are not typically documented, and that Mr Tan signed the gift certificate on her behalf.24
[22] The Judge discussed the presumption of advancement, noting that the presumption was the starting point, which could be rebutted by evidence showing that there was no intention to benefit by gift. However, acts or declarations subsequent to the transfer are not admissible to rebut the presumption “unless so connected with it as to be reasonably contemporaneous”.25 Her Honour noted that contemporaneous oral declarations as to the intent of the transferor were admissible to rebut the presumption, pointing to Warren v Gurney.26 The Judge noted the courts in New Zealand are yet to explicitly abolish the presumption of advancement as has been done in other jurisdictions. She noted that in Young v Young it was termed an anachronism and stemmed from the obligation of a father where he has inadequately provided for his son.27
[23] The Judge noted that the conflicting authority in the High Court as to whether the presumption still exists, particularly in respect of transfers from a parent to an independent adult child. She referred to the High Court decision in Nelson v Meier, holding that the presumption only applied where the parents were in loco parentis and there was a relationship of dependency.28 However, two years later, in Woolf v Kaye, the High Court held that the presumption still applied whether the child is dependent or not.29
24 At [35].
25 At [36], citing N v N, above n 19, at [46]–[47].
26 Warren v Gurney [1944] 2 All ER 472 (CA) at 473–474, affirmed on this point in N v N, above n 19, at [46].
27 At [38], referring to Young v Young [2000] NZFLR 128 (FC) at 133.
28 Nelson v Meier [2016] NZHC 787 at [56]–[58].
29 Woolf v Kaye [2018] NZHC 2191 at [188].
[24] The Judge noted that the Court of Appeal did not explicitly abolish the presumption but in Reid v Castleton-Reid had opined that “it is difficult to see any rationale for the operation of the presumption of advancement where an adult child is well-established in life”.30
[25] The Judge concluded that despite “significant” criticism, the presumption of advancement still stood in New Zealand and applied irrespective of whether or not the child was dependent on the parent.31
[26] The Judge had earlier noted that issues of Chinese culture were relevant in determining the case.32 She cited the Supreme Court in Deng v Zheng, which had observed that judges should approach cases such as the present with caution and that judicial rules of thumb may have limited utility where premised on “judicial assumptions not shared by the parties.”33 Her Honour also noted that the Court had indicated that there was a tendency for Chinese parties to rely on written arrangements, particularly between family and friends, but caution was necessary given those rules could not be presumed to be universally held among Chinese people.34
[27] The Judge noted that the New Zealand courts had recognised the tendency among Chinese families to conduct transactions informally and without documentation as early as 2002.35
[28] Her Honour then referred to a number of cases involving parental advances where Chinese parties were involved. She noted it was not uncommon that in the face of the dispute or litigation, families will create documents purporting to be contemporaneous records of loan documents which might either be fraudulent, or “a clumsy attempt to record the true situation”.36
30 Family Court decision, above n 1, at [40], citing Reid v Castleton-Reid [2019] NZCA 372 at [85].
31 At [41].
32 At [15]–[19].
33 At [16], citing Deng v Zheng [2022] NZSC 76 at [78].
34 At [17], citing Deng v Zheng, above n 33, at [39] and [81].
35 At [18].
36 At [42], citing Zhang v Li, above n 22, at [13]–[14].
[29] The Judge noted that it was not uncommon that the documents recording transfers as gifts were created for the sole purpose of obtaining finance, not representing the true nature of the transfers, and that this practice was not isolated to Chinese families.37
[30] Her Honour went on to find that the presumption was overridden in this case by the evidence. In particular, she accepted the evidence in the affidavits by Mr Tan and Ms Xue as to Ms Xue’s intention at the time of the transfers. She noted that while the affidavits themselves were not contemporaneous, the decision in Warren v Gurney found that such affidavits or an oral equivalent are the “only practical way to establish a contemporaneous oral declaration in the absence of an audio recording.”38
[31] Her Honour then noted the following points weighed against the presumption of advancement:39
(a)Ms Xue affirmed that the transfers were always intended to be loans, and that she made oral declarations to that effect at the time.
(b)Mr Tan affirmed that Ms Xue made oral declarations that the advances were to be loans.
(c)The advances totalled $520,000. Ms Xue asserted that this comprised her and her husband’s entire life savings. The Judge noted there was no clear evidence to rebut this assertion and the fact that Mr Tan was self-represented supported this assertion.
(d)The authorities suggested that Chinese culture entails an obligation to repay transfers from parent to child.
[32]On the other hand, she noted the following in favour of the presumption:40
37 At [43] citing TN v AK [2019] NZHC 2466 at [76]–[78]; Lo v Lo [2021] NZCA 693 at [10] and
[33]–[34]; and Chinappa v Narain [2022] NZCA 183 at [38] and [42].
38 At [47], citing Warren v Gurney, above n 26.
39 At [48].
40 At [49].
(a)The advances were made from parent to child.
(b)There are no contemporaneous documents suggesting that they were loans.
(c)In respect of the 2013 advances, there is a gift certificate asserting that they are not loans. However, the issues with the authenticity of this document are relevant.
(d)Mr Tan made offers on significantly more expensive motels, suggesting that he anticipated being able to obtain finance.
[33] On balance she concluded that the presumption of advancement was rebutted, “in part by evidence of contemporaneous oral declarations, and in part by Chinese cultural considerations”.41 Her Honour noted the Court of Appeal had said that “the presumption of advancement is just that, a presumption as to the most likely inference of fact in the absence of evidence to the contrary.”42
Presumption
[34] There were a number of New Zealand cases referred to by Ms Wu. The Court of Appeal most recently considered the issue of the presumption in Reid v Castleton-Reid.43 The High Court had found that Mr Reid had gifted money to his son as the Judge had preferred the evidence on the point from the son.44 The Court of Appeal, allowing the appeal, said: 45
[35] We accept the advantage Gordon J had in seeing and assessing the witnesses. The Judge was entitled to make the adverse credibility findings she made against Mr Reid. The real issue, however, is not whether Mr Reid could establish the parties had made some sort of nominee agreement, but rather whether Mr Castleton-Reid’s evidence, in the context of the surrounding background facts, disclosed a sufficient expression of intention by Mr Reid to gift $1,700,000 of his money to his son at the time he paid the money into the Trading Account in his name. Absent a gift or application of the presumption
41 At [50].
42 At [51], citing Reid v Castleton-Reid (CA), above n 30, at [86].
43 Reid v Castleton-Reid (CA), above n 30.
44 Reid v Castleton-Reid [2018] NZHC 782.
45 Reid v Castleton-Reid (CA), above n 30.
of advancement Mr Castleton-Reid would have held the money on resulting trust for Mr Reid.
[35] Further, in relation to the presumption of advancement, the Court of Appeal distilled the principles and historic context for the presumption as follows:
[79] The presumption of advancement was originally limited to a father’s provision for his children.46 The presumption was extended to provision made by a mother and now extends to provision made by anyone in loco parentis. It has been applied by this Court in New Zealand.47 However, in a number of other jurisdictions the presumption has recently been rejected or abolished, at least in part.
[80] In Canada the presumption of advancement has been abolished in relation to adult children, whether the adult children are dependent or not.48 In Pecore v Pecore the Supreme Court of Canada held that the presumption of advancement was limited in its application to gratuitous transfers made by parents to minor children. The Court held that, given the principal justification for the presumption of advance is parental obligation to support dependent children, the presumption does not apply in respect of independent adult children.49 Further, since it is common for aging parents to transfer assets into joint accounts with their adult children in order to have the child assist them in managing their financial affairs, there should be a rebuttable presumption the adult child is holding the property in trust for the aging parent to facilitate the free and efficient management of that parent’s affairs.50 The presumption should also not be applicable to dependent adult children because it is impossible to list the wide variety of circumstances that would make someone dependent for the purpose of applying the presumption.51 Rather, evidence as to the degree of dependency of an adult transferee may provide strong evidence to rebut the presumption of a resulting trust.52
[81] In Dullow v Dullow the Court of Appeal of NSW noted that the obligation basis for the presumption of advancement has been challenged and at times it has been said to be more properly based upon the mere relationship between the parties.53 Hope J noted:54
Whatever the correct principle is, it might be thought that any obligation to advance and any relationship, and the nature of that relationship, ought more properly to be matters of evidence to be taken into account, along with all other relevant evidence, to determine what the intention of the person arranging the transaction was, and not something which gives rise to a presumption.
46 Dyer v Dyer (1788) 2 Cox Eq Cas 92, 30 ER 4 (ExCh).
47 Hall v Guardian, Trust & Executors Co of New Zealand Ltd [1938] NZLR 922 (CA) at 948 and 953.
48 Pecore v Pecore 2007 SCC 17, [2007] 1 SCR 795.
49 At [36].
50 At [36].
51 At [40].
52 At [41].
53 Dullow v Dullow (1985) 3 NSWLR 531 (NSWCA).
54 At 536.
[82] However, while observing that reform seemed overdue, the Court considered it was a matter for the legislature other than the Courts.55
[83] In the United Kingdom the House of Lords discussed the presumption and how it relates to the contrary presumption of resulting trust in the 21st century in Stack v Dowden.56 Baroness Hale there said:
[60] The presumption of resulting trust is not a rule of law. According to Lord Diplock in Pettitt v Pettitt [1969] 2 All ER 385 at 424, [1970] AC 777 at 823, the equitable presumptions of intention are ‘no more than a consensus of judicial opinion disclosed by reported cases as to the most likely inference of fact to be drawn in the absence of any evidence to the contrary’. Equity, being concerned with commercial realities, presumed against gifts and other windfalls (such as survivorship). But even equity was prepared to presume a gift where the recipient was the provider’s wife or child. These days, the importance to be attached to who paid for what in a domestic context may be very different from its importance in other contexts or long ago. As Gray and Gray Elements of Land Law (4th edn, 2005) point out (p 864 (para 10.21)):
‘In recent decades a new pragmatism has become apparent in the law of trusts. English courts have eventually conceded that the classical theory of resulting trusts, with its fixation on intentions presumed to have been formulated contemporaneously with the acquisition of title, has substantially broken down … Simultaneously the balance of emphasis in the law of trusts has transferred from crude factors of money contribution (which are pre-eminent in the resulting trust) towards more subtle factors of intentional bargain (which are the foundational premise of the constructive trust) … But the undoubted consequence is that the doctrine of resulting trust has conceded much of its field of application to the constructive trust, which is nowadays fast becoming the primary phenomenon in the area of implied trusts.’
There is no need for me to rehearse all the developments in the case law since Pettitt v Pettitt and Gissing v Gissing, discussed over more than 70 pages following the quoted passage, by Chadwick LJ in Oxley v Hiscock [2004] EWCA Civ 546, [2004] 3 All ER 703, [2005] Fam
211, and most importantly by my noble and learned friend, Lord Walker … in his opinion, which make good that proposition. The law has indeed moved on in response to changing social and economic conditions. The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.
[84] In New Zealand, the presumption has been abolished, at least as it operates between spouses, by s 4 of the Property (Relationships) Act 1976.
55 At 536, referring to Calverley v Green (1984) 59 ALJR 111 at 112–113 and 120.
56 Stack v Dowden [2007] 2 WLR 831 (HL).
[85] It is difficult to see any rationale for the operation of the presumption of advancement where an adult child is well established in life, as Mr Castleton-Reid was in March 2009. The presumption is based on the concept of a parental obligation to support children. How could Mr Reid have an obligation, at his age (in his late 80’s at the time) to apply the entirety of his assets to his 42 year old son, who owned several properties and described himself in the Craig’s authority as of independent means?
[86] The presumption of advancement is just that, a presumption as to the most likely inference of fact in the absence of evidence to the contrary. Given the facts of this case discussed above, we consider the contrary evidence, particularly of Mr Castleton-Reid’s personal financial position, and Mr Reid’s age and personal financial position, count strongly against a presumption that Mr Reid intended to gift the $1,700,000 to Mr Castleton-Reid outright.
[36]Therefore, the correct position, as enunciated by the Court of Appeal, is that:
(a)The presumption is as to a resulting trust when there is an advance or transfer of property. Equity was prepared to presume a gift where a parent advanced assets to a child.
(b)Any presumption is merely the most likely inference of fact in the absence of evidence to the contrary.
(c)Any inferred obligation on a parent to apply assets to a child will depend on the circumstances, including those of the dependence or otherwise of the child. It is difficult to see any rationale for the operation of the presumption of advancement where an adult child is well established in life.57
(d)The law has moved on in response to changing social and economic conditions. The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.
(e)Any obligation to advance and any relationship, and the nature of that relationship, ought more properly to be matters of evidence to be taken into account, along with all other relevant evidence, to determine what
57 Reid v Castleton-Reid (CA), above n 30, at [85].
the intention of the person arranging the transaction was, and not something which gives rise to a presumption.58
Analysis on first and second grounds of appeal
[37] I now turn to the issues raised by the appellant in support of the first and second grounds of appeal, that the contributions by Mr Tan’s parents were gifts not loans.
[38] First, in relation to the $235,000 advance in 2013, Ms Wu says the presumption of advancement could not have been rebutted without a finding of forgery of the gift certificate. The Judge did not make a conclusive finding on the authenticity of the gift certificate. Therefore, the gift certificate stood and was prima facie, if not conclusive, evidence of the money being a gift. Ms Wu says that even if the Judge had found that the gift certificate was a forgery, the finding was wrongly made as the Judge did not address whether the presence of Ms Xue’s phone number on the gift certificate supported its authenticity.
[39] Ms Wu also says that the Judge erred in finding Mr Tan’s evidence was credible and in preferring it. Ms Wu noted several instances demonstrating Mr Tan’s lack of credibility, including that he shifted his narrative on the phone number in cross-examination and he produced a fraudulent loan document, claiming it to be contemporaneous evidence of the loan, which he later admitted to creating afterwards. Therefore, Ms Wu says the onus lies on Mr Tan to establish that the gift certificate was a forgery and he failed to provide supporting evidence and demonstrated a lack of credibility, so weight cannot be given to his assertions.
[40] Mr Tan’s mother and Mr Tan gave evidence that Mr Tan created the gift certificate to obtain the loan from the bank. Ms Xue said she knew nothing about the gift certificate and Mr Tan’s evidence also supported that. The Judge accepted the evidence on that point of both Ms Xue and Mr Tan, as she was entitled to. While Mr Tan may have shifted his position on some matters, that does not mean the Judge necessarily had to reject all his evidence. That was a matter for the Judge hearing the matter.
58 At [81], citing Dullow v Dullow, above n 53, at 536.
[41] The intention of Mr Tan’s mother relating to whether Mr Tan’s parents’ advance was a loan or a gift was of importance and her evidence was that this was communicated to Mr Tan. Ms Wu was not privy to those arrangements, although she said that Mr Tan told her that his mother had emailed the gift certificate to him.59 She said that certificate was explicit that the funds were being advanced as an unconditional gift and there was no expectation of the funds being retained or repaid.60 The Judge also acknowledged the submissions of Ms Wu that Mr Tan’s assertions could not be trusted, as well as the submissions that Ms Xue’s phone number on the gift certificate was strong evidence that it was genuine because the bank would have been able to contact her to confirm that she had signed it. In addition, the Judge recorded that Ms Wu had pointed to the fact that Mr Tan’s parents were wealthy and capable of making significant gifts, and Mr Tan’s father had told her he made more in half a year than she made in 10 years. In addition, Ms Wu had said that Mr Tan had made offers on other motel businesses which were more expensive than the motel they bought, evidencing that his parents were able to assist in the purchase of a more expensive motel.61
[42] It is apparent that the Judge properly considered the points made in favour of Ms Wu’s position that the advances were gifts, but concluded that she preferred the evidence of, in particular, Ms Xue. That was a matter for the Judge. The evidence was available to her to reach her conclusion and that was not in error.
[43] In particular, the points surrounding the wealth or otherwise of Mr Tan’s parents, and whether or not offers were made on more expensive motels by Mr Tan, were explained by Mr Tan and Ms Xue. Ms Xue rejected the allegation that she and her husband were wealthy and gave reasons for that, including that cardiologists are not particularly wealthy in China, the advances comprised her and her husband’s entire savings, and they had to borrow from relatives to make the advances.62 In addition, the Judge accepted that Mr Tan’s parents were unable to continue paying for a lawyer for Mr Tan and he was self-represented at the relationship property hearing, as he was in the appeal.
59 Family Court decision, above n 1, at [27].
60 At [27].
61 At [31].
62 At [35].
[44] In essence, the Judge’s finding that the advances were loans and not gifts was a finding made on the evidence. If there was a presumption, it was rebutted, as there was evidence upon which the Judge relied to make her determination. In any event, the advances were a significant amount to an independent adult child living in another country, and as such there was little room for such a presumption to operate.
[45] Mr Zhang also submitted on Ms Wu’s behalf that Mr Tan had changed his position in relation to the preparation of loan documents recording the loan. Mr Tan accepted that those loan documents had been prepared after the advances had been made. Mr Tan’s explanation was that he prepared them when his parents came over to New Zealand but they were not allowed to go into the motel office so they were never executed. They were not contemporaneous documents, and therefore not admissible evidence in relation to the advances. However, that does not alter the position that the Judge accepted the evidence of Ms Xue and Mr Tan in her findings as to the intention that the advances were loans.
[46] Mr Zhang, on behalf of Ms Wu, said there was insufficient evidence for the Judge to find Mr Tan had “discharged the presumption of advancement”. Mr Zhang said there was no explanation by Mr Tan as to why he made offers on other more expensive hotels, and the onus lay on him to discharge the presumption, “yet he provided no conclusive evidence in support of his claims”. As I have noted, evidence of the intention that the advances were to be loans was available to the Judge.
[47] The Judge was required to make a determination supported by sufficient reasons on the principal points supporting her determination.63 She was not required to give detailed reasons as to why she rejected or accepted every piece of evidence.
[48] Mr Tan gave evidence that he had constructed the gift certificate. The Judge accepted that Ms Xue had not signed it. Her Honour questioned the authenticity of the gift certificate. This was sufficient. In the circumstances, she was not required to determine if the document was in fact a forgery by Mr Tan. She made no error in not
63 R v Awatere [1982] 1 NZLR 644 (CA); and see Maungaharuru-Tangitū Trust v Hastings District Council [2019] NZHC 2576 at [21]–[22], citing Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 (HC) at [70] and [73], citing Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [80].
embarking on that consideration, particularly given that forgery is a criminal offence and carries with it a different burden of proof to that in a relationship property proceeding.
[49] Ms Wu also submitted that the Judge erred in giving weight to what her Honour considered to be Chinese culture. Ms Wu submitted there was no Chinese cultural evidence that there was an obligation to repay transfers from a parent to a child. Foreign culture was a matter of fact, not New Zealand law, so precedents cannot substitute evidence.
[50] First, the Judge’s conclusion on the loans was a finding primarily as to intention. While she commented on Chinese culture supporting the finding as to intention, her main finding was based on the evidence before her. In addition, Mr Tan and Ms Xue gave evidence that was their view of Chinese culture as it affected them. The Judge was entitled to take this into account as a matter of fact. Neither party called expert evidence on the point and the Judge was entitled to look to other case law in general terms. I accept Mr Zhang’s submission that, in the usual course for any detailed examination of a cultural issue, the court would normally require expert evidence. In any event, the Judge was correct in her finding on intention and there was no evidence on Chinese culture which was inconsistent with that intention.
[51] Accordingly, the appellant fails in relation to grounds one and two of the appeal.
Third ground of appeal
[52] It was common ground that in the presence of lawyers, Mr Tan signed a deed of gift transferring the legal title of the Auckland property from both Mr Tan and Ms Wu to Ms Wu alone. On the basis of that, and Mr Tan’s earlier oral statements that he would transfer the property to her, Ms Wu argued that the Auckland property was her separate property.
[53] The grounds of appeal state that the Judge made a number of errors in concluding there was no gift. First, the deed became legally effective upon execution and there were no circumstances for it to be declared void or set aside, and therefore
the deed could not be overturned. Secondly, the Judge wrongly focused on Mr Tan’s subjective intentions, when the focus should have been on his objective intention as established by the deed. The Judge approached intention inconsistently with established legal principles concerning the interpretation of legal documents. Thirdly, the Judge overstated the significance of Mr Tan’s use of certain words, such as “transferring” rather than “gifted”. The appellant says this holds little weight when Mr Tan had clearly confirmed that he wished to give the property to Ms Wu and Mr Tan could understand English sufficiently to understand the legal implications of the deed. Finally, the Judge did not make a conclusive finding as to whether the Auckland property was used for the parties’ joint benefit and it is unclear whether reference by the Judge to Mr Tan’s financial involvement and contribution were to establish a subjective intention to gift or as evidence of joint benefit. There was insufficient evidence to show the gift was used for their joint benefit.
[54] The Family Court found that Ms Wu had not established an intention on Mr Tan’s part to gift his beneficial entitlement in the Auckland house property to Ms Wu.64 The Court found that s 10(3) of the Act was not engaged and the Auckland property remained relationship property, there being no gift.
[55] The Judge noted that the deed of gift was not determinative evidence that Mr Tan intended to transfer the beneficial interest in the Auckland house to Ms Wu. Mr Zhang for Ms Wu submitted that Ms Wu’s evidence that Mr Tan signed the deed to compensate for a lack of a honeymoon, and Mr Tan’s evidence that the transferred property was to satisfy Ms Wu’s vanity, confirmed the effect of the deed. He further submitted that Mr Tan had sufficient education and English language skills to understand the effects of the deed of gift.65
[56] Further, Mr Zhang submitted that Mr Tan’s submissions that the Auckland house was used for the joint benefit of both parties could not be relied on as the payment of the rental income from the property into a joint bank account was of Mr Tan’s design, with Ms Wu having no input into it. On behalf of Ms Wu, Mr Zhang submitted that the Auckland house expenses exceeded any rental income and therefore
64 Family Court decision, above n 1, at [74].
65 At [57].
it was not used for the joint benefit. Even if the income were applied to repayments for the motel, that only makes the rental income relationship property and not the house property itself.66
[57] The Judge outlined Mr Tan’s position on the point being that he had signed the deed of gift under a “misunderstanding” and that in any event the Auckland house property was intermingled with other relationship property and used for the joint benefit of the parties. It was subject, the Judge noted, to mortgages totalling $840,000, which were used to fund the purchase and operation of the motel. Mr Tan said he changed the title of the Auckland house property to Ms Wu’s name because the relationship was unstable and he simply wanted her to be happy.67 Mr Tan accepted he had engaged lawyers, Gaze Burt Ltd, to assist with the transaction but had had no conversation with his lawyers in order to clarify New Zealand law on the specific issue. Mr Tan said that there were numerous documents to sign the morning that he and his wife went to see the lawyers.68
[58] In summary, the Judge accepted Mr Tan’s evidence that he signed the deed of gift on the understanding that they would still own the property together and the name on the title would not make a difference. Her Honour noted: Mr Tan gave a guarantee to the BNZ for all of the loans to Ms Wu; rental funds from the Auckland house were paid into a joint account, transferred to a business account, and then used to pay the mortgage; the funds were used to pay the costs of insuring the Auckland house; and income from the motel business was used to make up the shortfalls between the rental income and the mortgage repayments and expenses.69
[59] The deed of gift says: “It is our intention to gift the Land and the Title to YANLAN WU”. The Judge said she did not put much weight on the unsubstantiated assertions regarding the true nature of the deed of gift made by both parties.70
66 At [59].
67 At [61].
68 At [63].
69 At [64].
70 At [66].
[60] The lawyer who acted on the property and business transactions involving the deed of gift, Mr Bright, filed an affidavit. He said that in the course of the transaction, it was noticed that the family home was owned jointly but the BNZ loan to refinance existing debt secured against that home was only in the name of Ms Wu. A mortgage broker at the BNZ, following a query by Ms Hughes about the position, said by email that he understood that “as part of the finance and ownership restructure – Yanlan will be the only name on the titles of the Fitzgerald [motel] and Lavery Place [Auckland house] property”.71
[61] Ms Hughes, the lawyer acting on the transaction, followed this up with Mr Tan by email asking him whether he intended to transfer the property into just Ms Wu’s name, as contemplated by the BNZ. Mr Tan replied saying “Yes, please transfer sunnynook property [the Auckland house] to my wife’s name”.
[62] By a subsequent email Ms Hughes asked, “Can you please confirm that you would like to gift to Yanlan your share of the property at Lavery Place [the Auckland house]?”.
[63] Cross guarantees were also given by both parties to guarantee the debt of the Auckland house and the motel.
[64] Mr Bright and Ms Hughes both attended at the signing of the documents. Mr Bright said he did not recall the detail of that meeting, at which both parties were present, but he recalled that Mr Tan was adamant that he wanted to give his share of the Lavery Place property (the Auckland house) to Ms Wu.
[65] The Judge noted that the onus was on Ms Wu to establish that it was a gift.72 She noted that the deed of gift was effectively only one piece of evidence, “albeit a strong one”, in favour of Ms Wu’s assertion.73 The Judge found Mr Tan’s explanation of his understanding of the effect of the deed of gift, namely that it was to effect a
71 The reference to “Fitzgerald” appears to be a mistake in referring to the motel property at 114 Fitzherbert Avenue, Palmerston North.
72 Family Court decision, above n 1, at [69].
73 At [69].
change “on paper” not affecting his beneficial entitlement, was “plausible.”74 She said she did not place a great weight on the assertion by itself but that it was reinforced by the other evidence.75
[66] The Judge further noted that Mr Tan “did confirm” with the lawyer (Ms Hughes) that “he wanted to gift it to Ms Wu, and signed a document clearly marked ‘Deed of Gift’, after having the implications of the deed explained to him.”76
[67] Supporting her conclusion that the property was not gifted to Ms Wu alone, her Honour noted that the parties appeared to have deliberately structured their financial and business affairs so Ms Wu’s name was the sole name on their assets.77 This was also the case with the motel, which is, as was accepted by Ms Wu, relationship property. All of the accounts in the business which operated the motel bore the name “Michelle”, Ms Wu’s adopted English name.78 Her Honour noted that Mr Tan, despite the deed of gift, remained financially involved with the Auckland property. He had contributed more funds to the purchase than Ms Wu and had given an unlimited guarantee for the mortgage to the BNZ bank over it. The parties both funded shortfalls between the rental income and expenses using relationship property.
[68]Her Honour concluded:79
… Ms Wu has not established an intention on Mr Tan’s part to gift his beneficial entitlement in the Auckland property to her. Thus, s 10(3)is not engaged, and the Auckland property is relationship property, there being no gift.
Gifts between spouses — the legal framework
[69] The provisions relating to gifts between spouses generally are set out in ss 10 and 21N of the Act, which provide as follows:
10Property acquired by succession or by survivorship or as a beneficiary under a trust or by gift
74 At [70].
75 At [70].
76 At [71].
77 At [72].
78 At [72].
79 At [74].
(1)Subsection (2) applies to the following property:
(a)property that a spouse or partner acquires from a third person—
(i)by succession; or
(ii)by survivorship; or
(iii)by gift; or
(iv)because the spouse or partner is a beneficiary under a trust settled by a third person:
(b)the proceeds of a disposition of property to which paragraph
(a) applies:
(c)property acquired out of property to which paragraph (a) applies.
(2)Property to which this subsection applies is not relationship property unless, with the express or implied consent of the spouse or partner who received it, the property or the proceeds of any disposition of it have been so intermingled with other relationship property that it is unreasonable or impracticable to regard that property or those proceeds as separate property.
(3)Property that one spouse or partner acquires by gift from the other spouse or partner is not relationship property unless the gift is used for the benefit of both spouses or partners.
(4)Regardless of subsections (2) and (3) and section 9(4), both the family home and the family chattels are relationship property, unless designated separate property by an agreement made in accordance with Part 6.
…
21N Other powers and capacities not affected
(1)Nothing in this Part limits or affects the capacity of either spouse or partner to agree to acquire or hold any property jointly or in common, whether or not together with any other person, and whether legally or beneficially.
(2)Nothing in this Part limits or affects the power of spouses or partners to make gifts to each other.
(3)Regardless of any rule of law, a gift between spouses or partners may be made orally or in writing, and does not need to be made by deed or by delivery.
(4)Subsection (3) does not apply to de facto partners who have lived in a de facto relationship for less than 3 years.
[70]The commentary in Fisher on Relationship Property states:80
As between any parties, an allegation of gift between spouses or partners will fail if the requisite gifting intention on the part of the donor is not established
… In each case the Court must examine the actual evidence and make a finding as to actual intention. This is now exclusively a question of fact where the parties are living together at the time of the alleged gift. The presumption of resulting trust, advancement and gifts of wife’s income, in so far as they applied, are now abrogated within marriage, civil unions and de facto relationships by virtue of s 4(3) of the Act.
[71] The commentary goes on to note that the general principles as to the manner in which a donor may be bound by a gift appear to be radically altered by s 21N(3) as between spouses and partners, and notes that the section provides, among other things, that “regardless of any rule of law a gift between spouses or partners may be made orally or in writing and does not need to be made by deed or by delivery.”81 The author notes that the result of that provision appears to be that a gift between the parties is effective immediately upon the oral or written expression of an intention that a gift be made.82
[72] In this case the Judge assessed the evidence and concluded that Mr Tan had not understood the effect of the deed to be a gift and that it was merely a transfer to Ms Wu’s name on the title. She said:
[71] Mr Tan did not at any point request that the Auckland property be “gifted” to Ms Wu, and instead used words like “transferring”. I also consider it relevant that he referred to transferring the Auckland property into Ms Wu’s “name”, rather than transferring it to Ms Wu. I note, on the other hand, that he did confirm with Ms Hughes that he wanted to gift it to Ms Wu, and signed a document clearly marked “Deed of Gift”, after having the implications of the deed explained to him.
[72] The parties appear to have deliberately structured their financial and business affairs so that Ms Wu’s name was the sole name on their assets. This is also the case with the motel, which is, as accepted by Ms Wu, relationship property. I also note that all of the accounts, and the business which operated the motel, bear the name “Michelle”, Ms Wu’s adopted English name.
[73] Mr Tan, despite the deed of gift, remained financially involved with the Auckland property. In the first place, he contributed more funds to its purchase than did Ms Wu, and he gave an unlimited guarantee for the mortgage to BNZ bank over it. The parties both funded shortfalls between the rental income and expenses using relationship property.
80 Fisher on Relationship Property (NZ) (online ed, LexisNexis) at [3.3].
81 At [3.4].
82 At [3.4].
[73] The Judge then concluded that Ms Wu had not established that the Auckland property was a gift to her and so it remained relationship property.83
Analysis
[74] It is well-established that in a general civil proceeding the party bearing the onus of proof must adduce evidence in support of that party’s claim. If the tribunal is left in doubt on an issue, the party who carries the burden of proof on that issue fails.84 However, that approach does not apply in proceedings under the Act.85 As Hammond J put it in Hyde v Hyde:86
… The purposes of the Act as stated in s 1M, and the principles as stated in s 1N, need to be kept firmly in mind. The Court does not necessarily sit back as if this was a pure forensic joust, in traditional common law style. For instance, in a case such as the present the Family Court Judge or the High Court Judge would have been quite justified in indicating – regardless of what had been put in front of the Court – that further information was required as to the legal and subdivisional status of the land in question because it is the Court which must make a significant classification. Obviously it is open to the parties to argue for a particular position, but that has nothing to do with whether cases should be determined on an “onus of proof” basis in this subject area.
[75] In NJG v SS, a number of findings of the Family Court in relation to a relationship property division were under appeal.87 An appeal against a finding made in the Family Court that an advance by the husband’s father, who lived in Malaysia, was a gift was allowed on the basis of the evidence of the husband and the affidavit evidence of his father, which together was sufficient to rebut the presumption of advancement.88 However, Wylie J dismissed the appeal against a finding that the full proceeds of sale of the family home were a gift to the wife by the husband based on the surrounding circumstances. The husband had directed the transfer of the funds from the sale of the family home to the bank account of the wife, who had bought a house for her and the children with the funds, and the husband had stayed at the house for a period but paid rental. The wife paid the mortgage over the new property and
83 Family Court decision, above n 1, at [74].
84 Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11 at [2].
85 M v B [2006] 3 NZLR 660 (CA) at [48]; and Hyde v Hyde [2009] NZCA 125, [2010] 1 NZLR 224
at [45].
At [45].
87 NJG v SS [2013] NZHC 914.
At [66].
there was no acknowledgement that he had an interest in the property. Wylie J on appeal said:
[35] In my judgment, Judge Riddell was entitled to reach the conclusions drawn by her.
[36] Notwithstanding the approach to general appeals mandated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, it is clear that this Court on appeal must still treat with caution findings as to credibility made by a Judge in a lower Court who has heard the evidence.89 The trial Judge enjoys distinct advantages because he or she hears and sees the witnesses. These advantages are denied a Judge on appeal who only has the transcript.
[37]The issue was well articulated by Thomas J in
Rae v International Insurance Brokers,90 where he said as follows:
… It may not be fully appreciated that the deference of an appellate court to the findings of fact of the court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate court to intervene. The advantages possessed by the trial judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility - although in deference to the witness’s feelings the judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.
An appellate court has none of these advantages and must acknowledge that the court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate court to assert the capacity to be able to “second-guess” a trial judge’s findings of facts when it does not share those advantages. Exceptional caution in departing from the trial judge’s findings of fact are therefore regarded as imperative.
[38] Rae was cited with approval in Austin, Nichols, and a number of subsequent decisions have noted the caution that is appropriate in appeals that challenge findings of credibility.91
89 Austin, Nichols & Co Inc v Stichting Lodestar, above n 5, at [13].
90 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199.
91 See for example VKFM v FJS [2012] NZFLR 594 (HC) at [2]; B v F [2010] NZFLR 67 (HC) at [8]; and K v V [2012] NZHC 1129.
[76] Similarly in this case the Judge had the advantage of seeing and hearing the witnesses and she accepted the evidence of Mr Tan on whether he intended a gift. She pointed to evidence that supported this position, including the fact that the parties’ affairs were ordered in such a way that Ms Wu held the properties but both Ms Wu and Mr Tan provided unlimited guarantees over the properties. In addition, the properties were used to finance the business and pay the parties’ outgoings. She found that supported the fact that there was no gift of Mr Tan’s half-share of the Auckland house property. As she recognised, the deed was an important piece of evidence. However, it was open to her to assess all the evidence in the circumstances and reach the conclusion that she did.
[77] Mr Zhang for Ms Wu argues that the legal effect of the deed was that it was final and binding unless it was declared void. He points to the various doctrines that would need to be engaged, such as non est factum, duress and illegality. He says that evidence relevant to those principles was not advanced and therefore Ms Wu did not have the opportunity to address the evidence and make submissions. Mr Zhang says only then would it be open for the Judge to enquire into the validity of the deed. He says if the evidence supported the application of those principles or doctrines to invalidate the deed, it was open to the Judge to declare the deed invalid. However, he argued that no such doctrines were pleaded and there was no declaration sought to invalidate the deed.
[78] In my view, those arguments overlook the fact that the Judge undertook an enquiry in relation to the relationship property and its division between the parties. Invoking the strict rules in relation to the burden of proof, and treating the legal effect of the deed as final and binding unless declared void according to the common law approach, is too narrow an approach to relationship property issues. As Hammond J noted in Hyde v Hyde, the purposes of the Act need to be firmly borne in mind and this is not a “pure forensic joust, in traditional common law style”.92 The Judge in this case approached the matter appropriately, treating the deed as an important piece of evidence. Nevertheless, it was open to her on the evidence as a whole to find that there was no gifting of Mr Tan’s share of the Auckland house.
92 Hyde v Hyde, above n 85, at [45].
[79] Mr Zhang for Ms Wu also argues that if the Auckland property had been gifted to Ms Wu, the Court would then need to assess whether Mr Tan was correct that the gift “was used for the benefit of both spouses or partners”.
[80] On behalf of Ms Wu, he also says the rental income was used for the benefit of the spouses, rather than the Auckland house property itself, although it was security for the loans which funded the business. He said the rental from the house and the cost of the outgoings were sufficiently close that the difference could not qualify as being “for both parties’ benefit”.
[81] I am not persuaded that the Judge’s findings as to credibility in relation to this issue, and her determination on the evidence available to her, were wrong. The appeal also fails on this ground.
Conclusion
[82] The appeal is dismissed in relation to grounds one and two on to the basis that the Judge correctly determined that the advances by Mr Tan’s parents to the parties were loans, not gifts.
[83] The appeal is dismissed in relation to ground three on the basis that the Judge was not in error in concluding that Mr Tan did not gift his share of the Auckland house property to Ms Wu.
Costs
[84] Mr Tan was not legally represented. He is therefore not entitled to legal costs in the normal course. However, if any application of costs is to be made, that should be made by way of memorandum setting out submissions in support of the application, together with any authorities relied upon on, on or before five days from the date of this judgment. Any response should be within a further five days. I will then determine the matter on the papers.
Solicitors:
Avent Ark Lawyers Ltd, Auckland
Grice J