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Xiao v Wan

Xiao v Wan

Case [2024] NZHC 1624 19 June 2024

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2928

[2024] NZHC 1624

BETWEEN
KAN XIAO

Appellant

AND

MEI JUN WAN

Respondent

Hearing: 13 June 2024 (further submissions: 15 and 18 June 2024)

Appearances:

MSP Pang for appellant

K J Jenkins for respondent

Date of judgment:

19 June 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 19 June 2024 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Integritas Law, Auckland McVeagh Fleming, Auckland

XIAO v WAN [2024] NZHC 1624 [19 June 2024]

[1] Kan Xiao appeals against Judge I A McHardy’s 17 October 2023 decision,1 requiring Mr Xiao’s compliance with discovery orders and translation directions given in Judge D A Burns’ 20 December 2022 decision,2 both in the Family Court at North Shore. Mr Xiao also seeks an extension of time (styled an application for leave) to appeal Judge Burns’ decision, on which submissions were filed after hearing (submissions filed for hearing predominantly focusing on the merits of the appeals).

Background

[2] The impugned decisions were made in proceedings brought under the Property (Relationships) Act 1976. Mr Xiao and Ms Wan were in a relationship of short duration, commencing either in January (on Ms Wan’s account) or August (on Mr Xiao’s account) 2018 and ending in September 2020. The Family Court is to determine division of their relationship property. To that end, both sought discovery of the other, and Mr Xiao resisted providing translation of his Chinese language affidavit exhibits on grounds Ms Wan read and understood the Chinese language.

Judgments for appeal

[3] Given contest between the parties as to the availability of bank statements from Ms Wan’s closed China Merchant Bank account, Judge Burns directed Ms Wan to give Mr Xiao “full authority” to have access to the account and obtain bank statements.3 He also directed Mr Xiao provide further discovery of specified financial information relating to two companies, Top X Limited and Legend Building Limited, including their shareholder current account ledgers or explanatory statements and documents, and purchase of a property in Auckland’s Albany,4 extending to “English translations of information and evidence provided by [Mr Xiao] in Chinese [language] to assist the Court and counsel to progress matters”.5 And he directed Mr Xiao comply with r 160 of the Family Court Rules 2002, requiring any non-English-language affidavit filed in

1      Wan v Xiao [2023] NZFC 11376.
2      Wan v Xiao [2022] NZFC 13152.
3 At [10].
4      At [13], referring to [11(a)–(g)].
5      At [11(g)].

the proceeding be accompanied by an interpreter’s translation, in respect of “any material annexed to and forming part of an affidavit” from him.6

[4] Mr Xiao failed to provide particular information Judge Burns directed he discover and translate. Noting Mr Xiao had not appealed Judge Burns’ decision,7 Judge McHardy directed Mr Xiao comply with those directions.8 The Judge declined to rule on Mr Xiao’s 11 May 2023 application for further discovery from…

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 Xiao v Wan

Details

AGLC: Xiao v Wan [2024] NZHC 1624
Case: [2024] NZHC 1624
Decision Date: 19 June 2024

CaseChat Overview and Summary

In Xiao v Wan, Kan Xiao appeals against a decision by Judge I A McHardy, requiring compliance with discovery orders and translation directions issued by Judge D A Burns. Xiao also seeks an extension of time to appeal Judge Burns' decision. The dispute originates from proceedings under the Property (Relationships) Act 1976, focusing on the division of property from Xiao and Mei Jun Wan's relationship. Xiao argues that Judge Burns erred in directing discovery of pre-relationship documents, requiring a third-party accountant's explanation of accounting systems, and mandating translations of discovered documents. He contends Judge McHardy also erred in enforcing these directions and concluding that proffered documents did not constitute shareholder current account documents.

The court approached the appeals by considering whether Xiao's delay in appealing Judge Burns' decision warranted an extension of time. The court found no error in Judge McHardy's decision to enforce Judge Burns' directions, emphasizing the principle of finality in litigation and the Family Court's principles of resolving disputes inexpensively, simply, and speedily. Regarding the extension of time, the court noted that Xiao's nearly eleven-month delay in appealing Judge Burns' decision was primarily strategic, not inadvertent or errant. Given the significant delay, prejudice to Wan, and lack of a strong case for extension, the court declined to extend the time for Xiao's appeal. The court concluded that the interests of justice did not require allowing Xiao to challenge Judge Burns' decision now. Consequently, the appeal was dismissed, and the application for an extension of time was declined. Xiao was ordered to pay Wan's costs.

Orders