Zhan v Su - [2016] NZHC 1890

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1395 [2016] NZHC 1890

IN THE MATTER of the Land Transfer Act 1952, s 145A

BETWEEN

ZUFENG ZHAN Applicant

AND

HUITANG SU Respondent

Hearing: 15 August 2016

Counsel:

R Reed for applicant
FC Deliu and D Zhang for respondent

Judgment:

16 August 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 16 August 2016 at 11:45 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Prestige Lawyers Ltd, Auckland
Amicus Law, Auckland (R Zhao)

Zhan v Su [2016] NZHC 1890 [16 August 2016]

Contents

The application .......................................................................................................[1] Disposal of the application in the High Court........................................................[2] Background ............................................................................................................[3] The facts .................................................................................................................[7] The dispute ...........................................................................................................[15] The legislation ......................................................................................................[18] The appropriate court to have brought the application ........................................[25] The appropriate court to determine the application .............................................[26] Orders ...................................................................................................................[33]

The application

[1] The applicant applies for orders pursuant to s 145A of the Land Transfer Act

1952 sustaining the notices of claim 10432583.1 and 10432598.1.

Disposal of the application in the High Court

[2] Counsel filed written submissions. I indicated my view and invited submissions. Counsel were not asked to consent to the order I proposed. Instead, they were invited to comment on the form of the orders, which they did and for which I am grateful.

Background

[3] In June 2016, the applicant filed applications in the Family Court seeking orders:

(a) That he be allowed to make an application under the Property

(Relationships) Act 1976 out of time; and

(b)Various other orders regarding the relationship property of himself and the respondent.

[4] Copies of the applications filed in the Family Court were provided.

[5] The applicant lodged notices of claim on two properties under s 42 of the Property (Relationships) Act on 13 May 2016. His claim relates to two Auckland properties owned by the respondent which, he says, were brought with relationship property money. On 3 June 2016, the respondent applied to lapse the notices of claim. On 16 June 2016, the applicant filed this originating application. The application is opposed by the respondent.

[6] On 4 July 2016, Peters J made an interim order preserving the notices of claim pending further orders of the court. In addition, her Honour made various orders and directions for the disposal of the application in the High Court.

The facts

[7] The applicant and respondent were married in the Peoples Republic of China in 1999. In 1999 they had a daughter. In 2000 the applicant had a daughter with another woman. The respondent was initially unaware of this and understood that the baby had been adopted. The respondent cared for her not realising she was the applicant’s biological daughter. Reference is made to this on many occasions in the affidavits, although I fail to see its relevance to the current proceedings.

[8] In 2001, the applicant and respondent and their daughter obtained New Zealand residency. In September 2001, the applicant deposited NZ$1,000,000 into a HSBC bank account…

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 Zhan v Su

Details

AGLC: Zhan v Su [2016] NZHC 1890
Case: [2016] NZHC 1890
Decision Date: 16 August 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Zufeng Zhan, the applicant, filed an originating application to sustain notices of claim lodged under the Land Transfer Act 1952, s 145A against Huitang Su, the respondent. The applicant seeks to sustain the notices of claim on two Auckland properties, which he claims were purchased using relationship property money. The respondent applied to lapse the notices of claim, and the applicant filed this originating application. The legal issues the court was required to decide included whether the applicant had a reasonably arguable case for claiming an interest in the properties, the appropriate court to bring and determine the application, and the appropriate timing to hear the leave application in relation to the substantive application. The court found that the application should have been brought in the Family Court, and it was appropriate to transfer the application to the Family Court at Auckland to be determined with the leave application. The court sustained the notices of claim pending further order of the Family Court, transferred the application to the Family Court, and ordered that the application be heard with priority. The court also made an order that the applicant prosecute the application diligently and reserved costs for determination in the Family Court.

Orders