Yue v Zhou

[2023] NZHC 3007

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 AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001756

[2023] NZHC 3007

IN THE MATTER OF

an application for leave to appeal

BETWEEN

WEIHANG YUE
Appellant

AND

XIN ZHOU

First Respondent

WEN ZHOU

Second Respondent

Hearing:	On the papers
Judgment:	27 October 2023

JUDGMENT OF DOWNS J

(Permission for second appeal)

This judgment was delivered by me on Friday, 27 October 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Advent Ark Lawyers, Auckland. K3 Legal Ltd, Auckland.

YUE v ZHOU [2023] NZHC 3007 [27 October 2023]

[1]    Weihang Yue and Xin Zhou married in 2011. The couple lived in a central Auckland apartment bought by Mr Yue’s parents. In May 2015, they moved into a home in Blockhouse Bay. In 2017, Mr Yue and Ms Zhou divorced. Thereafter, the parties contested relationship property in the Family Court. Judge J G Adams found:1

(a)Mr Yue and Ms Zhou held Blockhouse Bay on trust for Ms Zhou’s father.

(b)Mr Yue’s parents owned a half-share in the apartment, and Mr Yue owned the other half-share.

(c)Mr  Yue’s  half-share  was  subject  to  a  s  11(1)(a)   of   the   Property (Relationships) Act 1976, that is, relationship property, and Ms Zhou was therefore entitled to a quarter of the proceeds from the sale of the apartment.

(d)Most of the funds in Mr Yue’s bank accounts were advances from his parents and not intermingled, and therefore not relationship property.

(e)The parties’ car was worth $34,000, and Mr Yue must account for half.

(f)The engagement ring was Ms Zhou’s property. Mr Yue had to account for its value.

[2]Mr Yue appealed every finding, except (d), to the High Court.

On 17 May 2023, I upheld all of Judge Adams’ determinations.2

[3]    Mr Yue seeks permission to bring a second appeal to the Court of Appeal in relation  to  (c)  only.  Permission is required because of s 39B  of  the  Property (Relationships) Act 1976 and s 60 of the Senior Courts Act 2016.

[4]    The Court of Appeal has said one appeal is normally sufficient, and a case must demonstrate some feature to justify a second appeal. Consequently, to gain

1      Zhou v Yue [2022] NZFC 6946.

2      Yue v Zhou [2023] NZHC 1157.

permission, an appellant must show the appeal will raise a question of law or fact capable of bona fide and serious argument, and there is some interest, public or private, of sufficient importance to outweigh the costs of the appeal.3

[5]Mr Yue proposes this question as fulfilling that standard:

How a Court is to approach the assessment of what constitutes the “family home” a term that is defined in statute and been the subject of discussion in various cases.

[6]    The breadth of the question suggests it is unworthy of permission. Other factors support this view too.

[7]    First, the real contention on behalf of Mr Yue is that the apartment should not have been treated as the family home on the particular facts of his case. In other words, despite the apparent breadth of the proposed question, the appeal would be intensely factual.

[8]    Second, the apartment was sold for $620,000, and the proposed appeal concerns a quarter share only. A second appeal would therefore be disproportionate to what is at stake, particularly given this litigation has (a) taken years, and (b) been hard fought. It is time to draw things to a close.

Result

[9]    The application for permission is declined. I award 2B scale costs to Ms Zhou and her father.

……………………………..

Downs J

3      Waller v Hider [1998] 1 NZLR 412 (CA); Snee v Snee (1999) 13 PRNZ 609, [2000] NZFLR 120 (CA); JEF v TLR (2012) 29 FRNZ 612 (CA); and Simon v Wright [2014] NZCA 199.