Zeng v Cai
[2016] NZHC 2336
•30 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-855 [2016] NZHC 2336
IN THE MATTER of the Property (Relationships) Act 1976 BETWEEN
JIANQIANG ZENG Appellant
AND
OU CAI Respondent
Hearing: 3 August 2016 Appearances:
C J R Baird and A V Shinkarenko for Appellant
S A Grant as Amicus CuriaeJudgment:
30 September 2016
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 30 September 2016 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Quinn Law, Auckland
Prestige Lawyers Limited, Auckland
Counsel: C J R Baird, Auckland
A V Shinkarenko, Auckland
ZENG v CAI [2016] NZHC 2336 [30 September 2016]
[1] The Appellant, Mr Zeng, appeals against rulings (to use a neutral word) of Judge Burns in the Family Court at Auckland on 12 April 2016. The Respondent, Ms Cai, opposes the appeal. Although I heard from Ms Cai at the hearing, Mrs Grant as amicus presented the legal arguments in opposition to the appeal.
[2] The appeal is brought pursuant to s 39(2) Property (Relationships) Act 1976 (“PRA”).1 It proceeds by way of general appeal, meaning that I must allow the appeal if I disagree with the Judge’s rulings.2
[3] The rulings in issue were made in proceedings commenced by Ms Cai in the Family Court, in which she seeks orders determining the parties’ shares in their relationship property, if any, pursuant to s 25(1)(a) PRA (“PRA proceedings”).3
[4] The particular rulings which Mr Zeng appeals against are, first, that he file and serve an affidavit of assets and liabilities and, secondly, that an application he has made to stay the PRA proceedings and transfer them to the High Court (“application for stay/transfer”) not be set down until that affidavit has been filed and served.4
[5] On appeal, Mr Zeng seeks orders quashing the Judge’s rulings and an order that his application for stay/transfer be set down without him having first filed his affidavit of assets and liabilities.
[6] One issue which arises at the outset is whether Mr Zeng has a right of appeal, as Mrs Grant submits that the rulings were in the nature of directions and that no
appeal lies.
1 Property (Relationships) Act 1976, s 39(3) and District Courts Act 1947, s 75.
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
3 Property (Relationships) Act 1976, s 25(1)(a).
4 The Judge also required Mr Zeng to file a “narrative” affidavit before the said application was
heard. At the hearing counsel advised that Mr Zeng no longer objects to that requirement.
Background
[7] Mr Zeng and Ms Cai were previously in a relationship, the nature and duration of which is in dispute. Ms Cai contends that she and Mr Zeng were in a de facto relationship. Mr Zeng denies this.
[8] In August 2014, Mr Zeng commenced proceedings against Ms Cai and her mother, Ms Fang Li, in the High Court, seeking orders in respect of a beneficial interest he claims in several apartments and a house in Auckland, all of which are registered in Ms Li’s name.5
[9] In December 2015, Ms Cai commenced her PRA proceedings.6 Amongst other things, this required Ms Cai to file a “narrative” affidavit and an affidavit of assets and liabilities, which she did.7 The form of the latter affidavit is stipulated by the Rules and, amongst other things, requires the deponent to describe the assets in which they have a legal or beneficial interest, and the value of those assets.
[10] Ms Cai’s PRA proceedings and affidavits were served on counsel for Mr Zeng on 4 February 2016. The effect of service was that Mr Zeng was required to file and serve a notice of defence or of intention to appear, his own narrative affidavit and an affidavit of assets and liabilities. Whatever the precise time periods for filing prescribed by the Family Courts Rules 2002 (“Rules”), the evidence before me is to the effect that the “Notice to Respondent” issued by the Court at the outset notified Mr Zeng that he would have 50 working days to file the various documents. My reading of the Rules is that this was more time for the affidavits than the Rules anticipate, but nothing turns on that at present. By my calculations, the 50 working
days – allowing for public holidays – expired on 19 April 2016.8
[11] Mr Zeng does not wish to file an affidavit of assets and liabilities, hence this appeal. His stance is that he and Ms Cai were never in a qualifying relationship and that he should not have to file the said affidavit before that issue is determined. As
Mrs Grant submitted, it is not unusual for a respondent to dispute a qualifying
5 Zeng v Cai HC Auckland CIV-2014-404-2012.
6 Property (Relationships) Act 1976, ss 11, 25, 33 and 34.
7 Family Courts Rules 2002, rr 20(1), 392(1) and 398(1).
8 Rules 392, 393 and 398.
relationship. The important point for present purposes, however, is that nothing turns on the reason for Mr Zeng’s wish to avoid filing. The issue is whether the Judge erred in any respect.
[12] Various interlocutory steps followed service on 4 February 2016, as follows:
(a) on 24 February 2016, following a without notice application by Ms Cai, a Registrar of the Family Court abridged Mr Zeng’s time for filing from 50 to 21 days from the date of service (“Registrar’s order”);9
(b)by memorandum dated 1 March 2016, counsel for Mr Zeng sought rescission of the Registrar’s order and notified that, absent rescission, he would make an interlocutory application for the same and, in any event, would make an interlocutory application for stay/transfer to the High Court;
(c) on 1 April 2016, Mr Zeng filed a notice of intention to oppose the orders sought by Ms Cai under the PRA. He also filed an application to rescind the Registrar’s order and for stay/transfer, and an affidavit in support. The orders Mr Zeng sought were that:10
ORDERS SOUGHT
(a) The Without Notice Orders made by a Deputy Registrar on 24 February 2016 reducing the time for filing a notice of defence, narrative affidavit and affidavit of assets and liabilities from 50 working days to 21 days from the date of service are rescinded; and
(b) This Family Court proceeding is stayed and transferred to the High Court at Auckland; ...
(d)by minute dated 12 April 2016, the Registrar advised that she had rescinded her order, and that the file would be referred to a Judge for
directions. Given that rescission, Mr Zeng’s original 50 working day
period was reinstated, and still had one week to run.
[13] The Registrar referred the file to Judge Burns that same day – 12 April 2016. She informed the Judge of the matters referred to in [12](d) above and that Mr Zeng’s time for filing a notice of defence and his affidavits had not yet expired; informed the Judge that Mr Zeng had filed a notice of intention to appear but not his affidavits; and sought the Judge’s directions in respect of the application for stay/transfer and progression of the case.
[14] The Judge then minuted the file as follows:
DIRECTIONS
The Registrar has placed this file before me for directions. … I now
make the following directions. 1/ The respondent is to file and serve
... [an] affidavit of assets and liabilities together with a narrative affidavit within the time limits specified. 2/ The application for [stay/transfer] is to be set down for a one and a half SCH to be based on submissions only provided there is opposition filed in the next 14 days.11 If no opposition then the interlocutory application for transfer is to be set down for a half hour FP hearing.12 The SCH or FP hearing are not to be set down until the respondent files and serves his [affidavit of assets and liabilities] and narrative affidavit.
3/ I direct at the same time as the SCH the case is set down for a 30 min issues conference. Counsel are to file five days prior to the IC a memorandum to cover the following. a/ a precise definition of the issues that the Court is being asked to resolve, b/ identify the assets and liabilities and values contended for in schedule form, c/ what further evidence is required including valuation evidence, d/ what directions are sought, e/ whether discovery is completed and if not what is sought and the grounds, f/ what steps have been taken to resolve the issues by the parties, g/ any other directions sought. 4/ Five days before the SCH Counsel are directed to file written submissions.
[Emphasis added.]
[15] I have italicised the rulings in dispute. Mr Zeng submits that the Judge erred because:
(a) he gave no reasons for these rulings;
(b)the rulings pre-determined a significant part of the application for stay/transfer, and undermined, and were contrary to, relief sought in the application; and
(c) the effect of the rulings was to deny him a right to be heard in relation
to a “very significant part” of his application for stay/transfer.
[16] Mrs Grant submits that:
(a) Mr Zeng does not have a right of appeal against what were directions by the Judge;
(b)alternatively that, as Ms Cai’s PRA proceedings seek orders under s 25 PRA, the Judge had no jurisdiction to relieve Mr Zeng of his obligation to file an affidavit of assets and liabilities; and
(c) alternatively that Mr Zeng’s affidavit of assets and liabilities might be relevant to the determination of his application for stay/transfer.
Discussion
[17] It is unnecessary for me to determine whether Mr Zeng has a right of appeal against what I am satisfied were case management directions. The appeal can be determined on other grounds, as follows.
[18] As regards the first ruling complained of, as soon as Mr Zeng was served with Ms Cai’s PRA proceedings, he was required to file an affidavit of assets and liabilities. This appears from r 398, which provides:
398 Affidavit of assets and liabilities to be filed and served
(1) An applicant who applies for an order under section 25(1)(a) of the
Act must file with the application—
(a) an affidavit of assets and liabilities in form P(R) 1; or
(b) an application for a direction as to the time within which he or she must file an affidavit of assets and liabilities, along
with an explanation of why the affidavit is not being filed with the application.
(2) The respondent in proceedings for an order under section 25(1)(a) of the Act must, within 20 working days after receiving service of the applicant’s affidavit of assets and liabilities, file—
(a) an affidavit of assets and liabilities in form P(R) 1; or
(b) an application for a direction as to the time within which he or she must file an affidavit of assets and liabilities, in which case the application must include an explanation of why the affidavit is not filed within the prescribed time.
(3) A Judge may, on his or her own initiative or on an interlocutory application for the purpose, require a party to any proceedings (not being proceedings under section 25(1)(a) of the Act) to file, within the time specified by the Judge, an affidavit of assets and liabilities in form P(R) 1.
...
[19] Accordingly, the Judge’s first direction – that Mr Zeng should file that affidavit – did no more than state the effect of r 398.
[20] I turn now to the Judge’s second ruling, namely that Mr Zeng’s application for stay/transfer should only be allocated a hearing date after he had filed his narrative affidavit and affidavit of assets and liabilities.
[21] I address the various submissions advanced below. The starting point, however, is that Mr Zeng sought a stay and a transfer. He did not apply for an interim stay or for more time beyond the original 50 working days which he sought to have reinstated. An application for a stay by itself does not stop time running. An order for stay – interim or otherwise – has that effect but an application does not.
[22] Accordingly, it is not apparent on the face of the application that Mr Zeng was seeking any order that would avoid the need to file and serve an affidavit of assets and liabilities. I accept that Mr Zeng expressed his unwillingness in the affidavit he affirmed in support of his application. That, however, is no substitute for an application for an order for an immediate stay.
[23] Mrs Grant submitted that the Court would not have had power to dispense with the affidavit in the present case, even if an order to that effect had been sought.
She submitted that the filing of such an affidavit was/is mandatory, as appears from
the “must” in r 398(1) and (2) and the power given to the Court in r 398(3) in “non s
25(1)(a) proceedings”. Her submission was that the only issue which might arise is
whether a party ought to have more time.
[24] In response to this submission, counsel for Mr Zeng referred me to r 132 which permits a Judge or Registrar to reduce or extend time for compliance. I do not consider this detracts from Mrs Grant’s submission. Rule 398 is specifically addressed to an affidavit of assets and liabilities in a proceeding under the PRA. Given that, it would prevail over r 132 which is of general application. Regardless, r 132 is concerned with time periods. It does not confer power to dispense with filing altogether.
[25] Accordingly, I accept the submission of Mrs Grant referred to in [23]. But, as I have said, nothing particularly turns on it in this case given the way the application was framed.
[26] Counsel for Mr Zeng also submitted that the Judge should not have taken the step of directing that the application for stay/transfer be set down only after the affidavits were filed, and that this direction was gratuitous. On a practical level nothing turns on this because there was no prospect of the application for stay/transfer being determined before Mr Zeng’s time for filing expired.
[27] In any event, and again as Mrs Grant submitted, there was good reason for the Judge’s direction, given that Mr Zeng wished the Family Court to transfer Ms Cai’s PRA proceedings to the High Court. Such a transfer is provided for in s 38A PRA, as follows:
38A Transfer of proceedings to High Court
(1) A Family Court Judge may order the transfer of proceedings to the High Court if the Judge is satisfied that the High Court is the more appropriate venue for dealing with the proceedings.
(2) In considering whether to make an order under subsection (1), the
Judge must have regard to—
(a) the complexity of the proceedings or of any question in issue in the proceedings:
(b) any proceedings before the High Court that are between the same parties and that involve related issues:
(c) any other matter that the Judge considers relevant in the circumstances.
(3) An order may be made under subsection (1) on—
(a) the application of a party to the proceedings; or
(b) the court’s initiative.
(4) Any proceedings transferred to the High Court by an order made under subsection (1) continue in that court as if they had been properly commenced there.
[28] The parties’ affidavits of assets and liabilities might well be relevant to the matters to which the Family Court was required to have regard in determining the application for stay/transfer.
[29] Counsel for Mr Zeng submitted that Ms Cai might have agreed to transfer the PRA proceedings. She might have, but it is the Court that must be satisfied under s 38A(1). Ms Cai’s consent might be relevant but it would not be determinative.
[30] Counsel for Mr Zeng submitted that the Judge was required to give reasons for the requirement that the affidavit be filed before a date for hearing the application for stay/transfer were allocated. Even if that is so – given these were case management directions – the reason for the direction is clear, given the application for stay/transfer.
[31] I dismiss the appeal accordingly.
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Peters J
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