Zeng v Cai - [2015] NZHC 1798

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2014-404-2012

[2015] NZHC 1798

BETWEEN
JIANQIANG ZENG

Plaintiff

AND

OU CAI

First Defendant

FANG LI

Second Defendant

Hearing: 28 July 2015

Appearances:

C J R Baird and A V Shinkarenko for Plaintiff A Manuson for Defendant

Judgment:

28 July 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Quinn Law (H L Quinn) St Heliers, Auckland, for Plaintiff
Prestige Lawyers Limited (A Manuson) Auckland, for Defendant

Copy for:

ZENG v CAI and LI [2015] NZHC 1798 [28 July 2015]

C J R Baird/A V Shinkarenko, Barristers, Auckland, for Plaintiff

[1] This matter was set down to hear the plaintiff’s application for further discovery under r 8.19 of the High Court Rules. At the start of the hearing, Mr Baird for the plaintiff also tendered a written application for an adjournment of the hearing to begin on 19 October 2015. In this decision I deal with both the discovery and the adjournment applications.

Background

[2] The plaintiff is an engineer who lives in China. He has sworn affidavits in Beijing. The first defendant, Ou Cai, is Chinese but has permanent New Zealand residence and lives in Auckland. The second defendant is her mother. She spends some time with the first defendant in Auckland, but also lives in Jilin City, Jilin Province, China. The first defendant has a brother, Yu Cai, who also lives in Jilin Province, although he also has spent time in New Zealand. The plaintiff’s parents live in New Zealand.

[3] Ms Cai is the mother of two children. One is Yunze Cai, who she says she adopted. She is also the mother of Dahai Cai, born about 30 April 2012. She says that Mr Zeng is the father. At present he disputes paternity but so far no arrangements have been made for paternity tests.

[4] All parties are Chinese. Their first language is Chinese. Notwithstanding that, all the documents that I have considered for this application (except for some exhibits to affidavits) are in English. It is desirable that those giving evidence be able to do so in their preferred language (invariably their first language). That way, they will have greater confidence that their evidence is true and correct. If evidence is given in a foreign language, it should be translated into English for the assistance of the other parties and the court. The Chinese language difficulties have added to the complexity of this case.

[5] Mr Zeng and Ms Cai were in a relationship which began about April 2010 and continued until about 2013. They did not live together as a couple. Theirs is not a relationship under s 2D of the Property (Relationships) Act 1976. Mr Zeng lived mainly in China and Ms Cai lived mainly in New Zealand but also travelled to China to spend time with him there.

[6] During their relationship, properties in Auckland were acquired. These were all held in the name of Fang Li, Ms Cai’s mother. There are…

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 [2015] NZHC 1798
Case: [2015] NZHC 1798
Decision Date: 28 July 2015

CaseChat Overview and Summary

In the case of Zeng v Cai, the plaintiff, Jianqiang Zeng, an engineer residing in China, sought a declaration of beneficial interest in various properties, including apartments in Auckland and a residential property in Epsom. The defendants, Ou Cai and her mother Fang Li, disputed these claims, asserting that any payments made by Zeng were gifts for Ou Cai. The case involved complex financial transactions, partly in Chinese currency, and language difficulties. The High Court of New Zealand was tasked with deciding on Zeng's application for further discovery and an adjournment of the hearing. The court granted the adjournment application, finding it unrealistic to proceed with the hearing on the scheduled date due to the extensive interlocutory work required, including translation of documents and preparation of evidence by witnesses outside the jurisdiction. Regarding the discovery application, the court ordered staggered discovery of financial records and other documents, allowing the defendants to first trace the flow of funds themselves before requiring more extensive disclosure if necessary. The court also directed further discovery of tenancy agreements, adoption and marriage dissolution documents, and Fang Li's immigration records. An order for non-party discovery was made against Yu Cai, Ou Cai's brother, with specific directions to facilitate compliance given his location in China. The plaintiff was directed to file an amended statement of claim, and the defendants were given deadlines for filing a statement of defence and further discovery. A case management conference was scheduled to review compliance with these directions. The plaintiff was awarded costs, and the parties were directed to confer on the costs.

Orders