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Zhang v Deng

Zhang v Deng

Case [2019] NZHC 2531 7 October 2019

Jurisdiction

Stay of Proceedings

Abuse of Process

Discovery & Disclosure

Property Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002911

[2019] NZHC 2531

UNDER the Land Transfer Act 1952

BETWEEN

CHENG ZHANG

Plaintiff

AND

FANG DENG

Defendant

Hearing: 14 August 2019

Appearances:

A Fisher QC for Plaintiff E Telle for Defendant

Judgment:

7 October 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

Solicitors:
Jesse & Associates, Auckland Loo & Koo, Auckland

ZHANG v DENG [2019] NZHC 2531 [4 October 2019]

Introduction

[1] In 2011, the parties separated after 33 years of marriage. They are currently engaged in relationship property litigation in the Family Court.

[2] At issue in these High Court proceedings is a property at Nixon Road, Taupaki, purchased by the plaintiff (the husband) in 2013 and after separation. He sues the defendant (the wife) pursuant to s 146 of the Land Transfer Act (LTA) 1952, claiming compensation for what he alleges was the lodging of a notice of claim against the property without reasonable cause.

[3] The wife has filed an appearance under protest to jurisdiction contending that the proper forum for the determination of the husband’s compensation claim is the Family Court. She says that the Nixon Road property is relationship property. She also seeks to strike out or stay these High Court proceedings on the grounds that they are an abuse of process when the same parties involved in the same subject matter are currently engaged in proceedings in a different court.

[4] The husband now seeks to set aside the protest, pursuant to r 5.49 of the High Court Rules 2016, contending that the property at issue is not relationship property (it was purchased post-separation) or a transaction between spouses. The Family Court, so he says, has no jurisdiction and it is only the High Court that can hear his compensation claim.

[5]The critical issues I must determine are:

(a)Whether this Court has jurisdiction to determine the claim under s 146 of the Land Transfer Act 1952; and

(b)Whether the Court should grant a stay of proceedings pending determination of all outstanding and interrelated issues in the Family Court.

Relevant legal principles

Protest to jurisdiction

[6] Rule 5.49(5) of the High Court Rules provides that at anytime after an appearance stating a defendant’s objection to jurisdiction has been filed, the plaintiff may apply to the Court by interlocutory application to set aside the appearance.

[7]Rule 5.49(6) then provides:

The court hearing an application under subclause (3) or (5) must, –

(a)if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; and

(b)if it does not dismiss the proceeding under paragraph (a), set aside the appearance.

[8] In the context of r 5.49, the jurisdiction which is the subject of protest is the entitlement of a court to entertain a suit.1 In Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd, the Supreme Court held that assessing the competence of the Court to decide the dispute is a…

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 Zhang v Deng

Details

AGLC: Zhang v Deng [2019] NZHC 2531
Case: [2019] NZHC 2531
Decision Date: 7 October 2019

CaseChat Overview and Summary

Cheng Zhang has sued Fang Deng under section 146 of the Land Transfer Act 1952, claiming compensation for what he alleges was the lodging of a notice of claim against the property at 123 Nixon Road, Taupaki, without reasonable cause. The wife has filed an appearance under protest to jurisdiction contending that the proper forum for the determination of the husband’s compensation claim is the Family Court. The critical issues I must determine are: (a) Whether this Court has jurisdiction to determine the claim under s 146 of the Land Transfer Act 1952; and (b) Whether the Court should grant a stay of proceedings pending determination of all outstanding and interrelated issues in the Family Court. I conclude that this Court has jurisdiction under s 146 of the LTA 1952 to hear the husband’s claim for compensation. I reject the wife’s submission that it is only the Family Court that has jurisdiction to entertain such a claim. I also conclude that the Family Court is best placed to determine whether the Nixon Road property is relationship property. If the Nixon Road property is relationship property, then the Family Court has exclusive jurisdiction to divide the property under ss 22 or 25 of the PRA, albeit no jurisdiction to determine the s 146 claim. I conclude that the proceedings should be stayed pending determination of all outstanding matters in the Family Court. There would be a real risk of unfairness to the wife if these proceedings were allowed to continue at the same time or in tandem with the Family Court proceedings. There is a risk of inconsistent findings and for the wife, who is impecunious with no assets in her name and in receipt of a sickness benefit, the considerations of cost, convenience and the interests of justice must weigh heavily in favour of a stay. For all these reasons I therefore grant the wife’s application for stay of proceedings on the terms set out below. The threshold of “rare and compelling circumstances” has been made out. The plaintiff’s application to set aside the protest to jurisdiction is granted. This Court does have jurisdiction to determine the husband’s s 146 compensation claim. The defendant wife’s application for a stay of proceedings is granted. These proceedings are stayed pending determination of all outstanding issues before the Family Court in proceedings FAM-2017-090-348 or further order of this Court. The stay is granted on the condition that the wife expeditiously prosecutes the Family Court proceedings. Leave is granted to the parties to seek a removal or variation of the stay, if there is a relevant change of circumstances. As to costs, I am of the preliminary view that costs should lie where they fall. Both parties have had a measure of success and the husband’s position on the stay application was not without merit. If the parties cannot agree on costs, then submissions are to be filed within 14 days.

Orders