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
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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…
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.
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AGLC
Wu v Tan [2023] NZHC 3747
Case
[2023] NZHC 3747
Decision Date
CaseChat Overview and Summary
In the case of Wu v Tan, the High Court of New Zealand considered an appeal from a Family Court judgment concerning the division of the parties' property under the Property (Relationships) Act 1976. The appeal focused on two main issues: first, whether contributions by the appellant's parents were loans or gifts, and second, whether the respondent gifted his share of a property to the appellant. The Family Court had determined that the contributions were loans and that no gift was made. The appellant argued that the Family Court erred in its assessment of the evidence, particularly in relation to the presumption of advancement and the effect of a deed of gift. The High Court found that the Family Court's determinations were supported by the evidence and that the Judge had properly considered the cultural context and the legal framework governing gifts between spouses. The appeal was dismissed, and the division of property as determined by the Family Court was upheld. The Court noted that the Family Court's findings on issues of credibility and intention were entitled to deference, and the appeal did not succeed in demonstrating that the Family Court had erred in its assessment of the evidence.