Zeng v Cai - [2016] NZHC 503

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2012 [2016] NZHC 503

BETWEEN
JIAN QIANG ZENG

Plaintiff

AND

OU CAI
First Defendant

AND

FANG LI

Second Defendant

Hearing: 10 March 2016

Counsel:

CJR Baird for the Plaintiff to oppose
A Manuson for the Defendants in support

Judgment:

17 March 2016

Reasons:

23 March 2016

REASONS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 23 March 2016 at 11:00 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ZENG v OU CAI [2016] NZHC 503 [23 March 2016]

[1] On 28 July 2015, Bell AJ made discovery and other orders in an oral judgment, the written transcript of which was signed and released to the parties on
7 September 2015.1 On 24 November 2015, the first and second defendants filed an

application for review, under s 26P(1) of the Judicature Act 1908, of the Associate Judge’s decision. Rule 2.3(2)(a) of the High Court Rules provides that, unless a Judge or an Associate Judge directs otherwise, an application for review under s 26P(1), if made by a party who was present or represented when the decision was given, must be made within five working days of the decision. The defendants accepted the application was filed out of time, 84 working days after the decision. The plaintiff opposed the application and I heard submissions at a hearing on
10 March 2016.

[2] The proceeding is scheduled for a five-day hearing beginning on

15 August 2016, to determine a separate question before trial about whether the plaintiff and the first defendant were ever in a qualifying de facto relationship under s 2D of the Property (Relationships) Act 1976, and, if so, its duration. Determination of that question will affect decisions as to the jurisdiction of the Court to address substantive issues in the proceeding.

[3] Under the current timetable, the first defendant is due to serve her affidavit evidence by 8 April 2016, the plaintiff being required to serve his affidavit evidence by 3 June 2016. Compliance with discovery orders is necessary if the parties are to have a fair and reasonable opportunity to draft their affidavit evidence. In view of the time constraints, therefore, I was satisfied that a decision on the application for review should be made promptly. On 17 March 2016, I released a result judgment
dismissing the application2 and said I would give my reasons later.

[4] My reasons for doing so are set out below.

1 Zeng v Cai [2015] NZHC 1798.
2 Zeng v Cai (Result) [2016] NZHC 463.

[5] The defendants’ proposal that the Court should review the decision was based

on four grounds:

(a) The discovery order was outside the jurisdiction of the High Court: Bell AJ’s orders were outside his jurisdiction because the draft amended statement of claim was not on foot, and the discovery orders went beyond the scope of the pleadings.

(b)Errors relating to procedure: the plaintiff filed a second amended application for discovery on…

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 Zeng v Cai

Details

AGLC: Zeng v Cai [2016] NZHC 503
Case: [2016] NZHC 503
Decision Date: 17 March 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Jian Qiang Zeng filed a case against Ou Cai and Fang Li, seeking relief in relation to a property dispute. The court was presented with an application for review by the defendants, Ou Cai and Fang Li, who sought to challenge the Associate Judge's discovery and other orders made on 28 July 2015. The defendants argued that the discovery order was outside the jurisdiction of the High Court, there were procedural errors, there were errors of law relating to discovery and costs, and the delay in bringing their application was justified due to communication difficulties and late filing of documents by the plaintiff.

The court considered the defendants' arguments and found that the discovery orders were well within the jurisdiction of an Associate Judge. The court also determined that there were no reviewable procedural errors and that the Associate Judge did not err in relation to the scope of the discovery orders or the costs determination. The court found that the defendants' claims about difficulties with the English language were not substantiated and that the lengthy delay in making the application for leave was unjustified. The court concluded that strict compliance with time limits under the Rules is required to allow a matter to proceed to substantive determination, and that further delay would be unfair and unreasonable.

The court dismissed the application for review and ordered the defendants to pay the plaintiff's costs on a category 2B scale. If the parties cannot agree on the costs and disbursements payable on the application, the plaintiff shall have leave to file and serve a memorandum seeking costs by 22 April 2016, and the defendants shall have until 20 May 2016 to file and serve any reply memorandum. Costs shall then be determined on the papers unless the Court directs otherwise.

Orders